A.34/96

Refusal to release a report of an accident investigation

1.  	The complainant complained that the Health and Safety Executive (HSE) had refused him access to information to which he was entitled under the Code of Practice on Access to Government Information (the Code). My investigation began in October 1996 after I had obtained comments from the Director General of HSE following the Member's referral of the complaint to the Parliamentary Commissioner's predecessor. An annex to this report lists the abbreviations used in it and their meanings.

Statutory background
2.  	The statutory powers of health and safety inspectors derive from section 20(2) of the Health and Safety at Work etc Act 1974 (HSWA). They include powers:

"to make such examination and investigation as may in any circumstances be necessary for the purpose [of carrying into effect any of the relevant statutory provisions within the field of responsibility of the enforcing authority which appointed him]" (section 20(2)(d)); and

"to require the production of, inspect, and take copies of or of any entry in - 

(i)	any books or documents which by virtue of any of the relevant statutory provisions are required to be kept; and

(ii)	any other books or documents which it is necessary for him to see for the purposes of any examination or investigation under [section 20(2)(d)]" (section 20(2)(k)).

Under section 14(2) of HSWA, the Health and Safety Commission, to whom HSE report, may at any time:

"(a)	direct [HSE] or authorise any other person to investigate and make a special report on [any accident, occurrence, situation or other matter whatsoever which the Commission thinks it necessary or expedient to investigate for various stated health and safety purposes]; or

"(b)	with the consent of the Secretary of State direct an inquiry to be held into any such matter".

Section 28(7) of HSWA states that a person shall not disclose any information obtained by him as a result of the exercise of any power conferred by section 20 except:

"(a)	for the purposes of his functions; or

"(b)	for the purposes of any legal proceedings or any investigation or inquiry held by virtue of section 14(2) or for the purposes of a report of any such proceedings or inquiry or of a special report made by virtue of section 14(2); or

"(c)	with the [consent of the person who furnished it]".

3.  	Where disclosure of information is prohibited under a statutory enactment, such as section 28(7), the information will fall within the terms of Exemption 15 of Part II of the Code (which is headed "Statutory and other restrictions"). Paragraph (a) of that exemption reads:

"Information whose disclosure is prohibited by or under any law or enactment, regulation, European Community law or international agreement."

Background to the complaint
4.  	The complainant's son died following an accident at a railway station on 31 July 1995. Shortly afterwards, an initial enquiry by Her Majesty's Railway Inspectorate (HMRI), which is part of HSE, led them to conclude that there had been no breach of health and safety legislation, or negligence by train operating companies, such as would warrant an investigation by HMRI.

5. 	On 7 August, the operating company, Thames Trains, wrote to the complainant and his wife, saying that there would be a full investigation into all the circumstances of the accident. Thames Trains carried out their investigation and produced an internal report (the report). On 24 November, the complainant wrote to them, requesting a copy of the report and its recommendations. They replied on 4 December, saying that they had received advice from the British Railways Board solicitor that no part of the document should be released at that stage.

6.  	The complainant also wrote to the Rail Users' Consultative Committee. On 16 January 1996 the Secretary of the Committee sent him a copy of a letter of 11 January which the Secretary had received from Thames Trains. The letter said that copies of the report had been sent to HSE and to the coroner who was investigating the death of the complainant's son. In that letter, Thames Trains said that such reports were not for external use, but were circulated within the railway industry so that any recommendations could be evaluated and implemented as appropriate.

7.  	On 24 March, the complainant wrote to HMRI, citing the Code, and requesting disclosure of information in the report. He believed disclosure of the information was in the public interest. HMRI sent an interim reply on 15 April. On 15 June the complainant wrote again, to remind HMRI that he had not yet had a substantive reply. HMRI replied to his letter of 24 March on 18 June, saying that they were seeking the consent of Thames Trains to disclose the information the complainant had requested. On 1 August, they wrote to the complainant saying that Thames Trains had refused to give their consent and that the information was therefore exempt from disclosure under Exemption 14 of Part II of the Code. The complainant wrote to HMRI on 3 August; and sent a copy of that letter to the Director General of HSE, saying that he wished to appeal against HMRI's refusal.

HSE's reasons for refusing access
8.  	The Director General replied on 2 September. She said that HSE's Open Government Complaints Panel (the Panel) had considered the complainant's complaint and had concluded that HSE had been correct in deciding that they were not able to provide him with a copy of the report. She said that HSE had not obtained a copy of it through the use of their statutory powers to require information to be provided. The report had been sent voluntarily to HSE by Thames Trains. She cited Exemption 14(a) (the second part) and Exemption 14(b) of Part II of the Code.

9. 	Exemption 14 is headed "Information given in confidence". The relevant parts read:

"(a)	Information held in consequence of having been supplied in confidence by a person who:

-	...

-	was not under any legal obligation, whether actual or implied, to supply it, and has not consented to its disclosure.

"(b)	Information whose disclosure without the consent of the supplier would prejudice the future supply of such information."

Exemption 14(b) is subject to the "harm test" in the preamble to Part II:

"References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available."

10. 	The Director General said HSE had sought the consent of Thames Trains to release the report to the complainant, but it had not been granted. While HSE had extensive powers to demand information if required, they preferred where possible to operate through effective voluntary procedures based on respect and trust. The report had been supplied under such procedures; and the Panel felt that disclosure without consent could jeopardise the flow of future information which would not serve the interests of health and safety for employees or the public. The Director General apologised for HMRI's delay in responding to the complainant's initial request for information; and for the fact that he had not previously been given a full explanation of the decision not to disclose the information. 

11. 	The complainant was not satisfied with that explanation and, through the Member, complained to the Parliamentary Commissioner's predecessor.

12.  	In her comments on the complaint, the Director General said that the report had been refused for the reasons given in her letter of 2 September to the complainant. She went on and said that if the report had been received by HSE as a result of the exercise of an inspector's powers under section 20 of HSWA (paragraph 2), it could have been disclosed only in the circumstances specified in section 28(7) (paragraph 2). The only circumstance which could have been relevant was the consent of the person by whom the information had been supplied. As that consent had been refused, the question whether the report came within the scope of section 28 had not been fully explored at that time.

13. 	The Director General added that the Panel had reviewed the request on 21 August, following confirmation of the legal position. They had agreed that HSE should continue to refuse the information under the second part of Exemption 14(a) and Exemption 14(b). They considered that the public interest did not outweigh the reasons for confidentiality. However, they took the view that the reasons for not supplying the information had not been sufficiently explained and that there had been undue delay in dealing with the request. The results of the Panel's consideration had been given to the complainant in the Director General's letter of 2 September. 

14. The Director General said she was fully satisfied that HSE were right in refusing the complainant's request under Exemption 14(a) and 14(b). As a regulatory authority, HSE received huge amounts of information from the bodies they regulated. Some of this information was acquired through the use of statutory powers, either explicitly, or, more commonly, implicitly. Much information was also volunteered to HSE. Suppliers of information expected that it would be treated as confidential. Section 28 had been included in HSWA to ensure that the information HSE acquired through the exercise of their statutory powers would be disclosed only in certain circumstances. Exemption 14 of the Code seemed to offer a similar protection to volunteered information. Without the information they received, it would be impossible for HSE to carry out their primary duty to protect the health and safety of workers and others. If, where they saw no health and safety need to do so, they were to disclose information without consent, it was likely that many employers would cease freely to provide information which assisted HSE in carrying out their regulatory functions. HSE would become less effective in securing appropriate standards of health and safety.

15. On the question whether the public interest in disclosure might outweigh any harm arising from disclosure, the Director General said that there was very little in the report which would influence public safety on the railways. She supported the view of the Panel that release of the information would not help improve safety and that, from that point of view, the public interest would not outweigh the reasons for respecting Thames Trains' wish to preserve confidentiality. Nor did HSE have secure grounds for challenging Thames Trains' decision not to give consent to disclosure. Were release of the report to cause the future supply of information to be prejudiced and HSE to be less effective, the public interest would be harmed by a lower standard of health and safety.

16. The Director General said the Panel had noted that there had been an unacceptable delay in responding to the complainant's original request; and that action had been taken on it only after he had written again. At the time he wrote, procedures in HMRI for keeping track of correspondence of that kind had not been fully effective. Those procedures had since been improved and the Director General hoped that such a delay would not happen again.

Assessment
17. 	While I have considerable sympathy for the complainant on the sad loss of his son and I understand his desire to obtain as much information as is available about the circumstances of the accident which led to his son's death I must, in making my assessment, have regard only to the requirements of the Code.

18. 	Having examined HSE's papers relating to the report, I find that it is not possible to establish with any certainty how the report came into HSE's possession, but I have no reason to doubt the Director General's assertion that Thames Trains supplied it voluntarily. However, in the absence of conclusive evidence I must consider each of the possibilities.

19. Information which has been supplied voluntarily may be withheld under Exemption 14(a), except where the supplier consents to disclosure. It is clear that Thames Trains did not give their consent to the release of the report. The harm test which is referred to in paragraph 9 is not relevant to Exemption 14(a), because that exemption contains no reference to harm or prejudice. 

20. 	Where HSE rely on a statutory power to obtain information, disclosure is prohibited under section 28(7) of HSWA, except as permitted by paragraphs (a), (b) and (c) of section 28(7). Paragraphs (b) and (c) are irrelevant in this case as no relevant legal proceedings, investigation or inquiry were in progress; and Thames Trains have not given their consent to disclosure. As to paragraph (a): there is nothing in the report or in the papers relating to it which would lead me to disagree with HSE's view (paragraph 15) that release of the information in the report would not help improve safety. I am therefore satisfied that the purposes referred to in section 28(7)(a) do not apply in the present case.

21. 	Had the report been obtained under a statutory power, it would therefore have been protected from disclosure under section 28(7) of HSWA; and the information it contains would consequently have fallen within Exemption 15 of Part II of the Code (paragraph 3).

22. 	I see no need to make any distinction between the direct use of a statutory power and implicit reliance on such a power. The protection afforded by section 28(7) would apply in either case. It would clearly be anomalous if compulsorily-acquired information and voluntarily-supplied information were exempt from disclosure, but information obtained by implicit reliance on a statutory power were not.

23. 	As I am therefore satisfied that HSE are entitled, under either Exemption 14(a) or Exemption 15, to withhold the information in the report, it is not necessary to consider whether or not Exemption 14(b) might also apply.

24. 	As to the handling of the complaint: I see the apologies which were offered in the Director General's letter of 2 September to the complainant (paragraph 8) as a satisfactory remedy for the initial delay in responding to his information request. I welcome the Director General's assurance that HMRI have improved their procedures for tracking correspondence.

Conclusion
25. 	I understand and sympathise with the complainant's wish to have access to all available information about the circumstances of his son's death. However, I find that HSE were entitled, under Exemption 14(a) or Exemption 15, to withhold the information in the report and I do not uphold the complaint.

ANNEX

GLOSSARY

HSE		the Health and Safety Executive

the Code	the Code of Practice on Access to Government
	Information

HSWA	the Health and Safety at Work etc Act 1974

HMRI		Her Majesty's Railway Inspectorate (part of the
Health and Safety Executive)

the report		the internal report prepared by Thames Trains on
		the findings of their investigation into the
		accident at a railway station on 31 July 1995

the Panel	        HSE's Open Government Complaints Panel