A.37/96

Refusal to disclose information about defects at a nuclear power station

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). My investigation began in March 1997 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.

Background
2.  	Mr X is a retired nuclear safety engineer. Before retiring in 1982, he worked for 27 years for the United Kingdom Atomic Energy Authority, advising on the safety of nuclear reactors, including pressurised water reactors (PWRs). He describes himself now as an independent assessor of risk from nuclear power stations.

3.  	The Sizewell B power station contains the first PWR to be constructed in the United Kingdom for commercial power generation. Permission for construction of the power station was granted following a public inquiry, which was conducted between 1983 and 1985. Mr X gave evidence to the inquiry about the risk of an explosion of the reactor pressure vessel (RPV), which houses the core of the reactor containing the nuclear fuel. Having considered that evidence, and other evidence, the inquiry was satisfied with the case which had been made for the safety of the plant.

4.  	In 1987, the Nuclear Installations Inspectorate (NII), a division of HSE, issued a licence under section 3 of the Nuclear Installations Act 1965 (NIA 1965) for construction of the power station. Consent for full commercial operation was granted in September 1995.

5.  	Nuclear Electric Limited (NEL), who were incorporated in March 1996, are a subsidiary of British Energy plc (BE). They own and operate Sizewell B. Under conditions attached to their licence, NEL are required periodically to shut down the reactor and carry out a full inspection and maintenance programme, known as an outage. An outage has three stages, for each of which a report is produced containing, among other things, details of any defects found. Under the terms of their licence, NEL are required to provide NII with those reports. The first outage at Sizewell B was conducted between June and August 1996, after which NII granted consent for the reactor to return to power. Brief details of NII's inspections during the outage are contained in their quarterly published site inspection reports.

6.  	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 provided. In broad terms, "relevant information" is defined as information obtained by HSE under powers afforded by HSWA 1974, or provided to HSE in pursuance of a requirement imposed by any other relevant statutory provision. NIA 1965 is one such provision. The specified exceptions to the prohibition on disclosure 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)).

7.  	The general functions of HSE, and those of the Health and Safety Commission (HSC) to whom HSE report, are set out in section 11 of HSWA 1974. Under subsection (1), HSC (and by extension HSE) have a 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 referred to in section 1(1) of the 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.

	Section 11(2) of HSWA 1974 also imposes the following duties:

(i)	"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" (section 11(2)(b)); and

(ii)	"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 the HSWA 1974] are provided with an information and advisory service and are kept informed of, and adequately advised on, such matters" (section 11(2)(c)).

8.  	On 11 June 1996, Mr X sent a message by electronic mail to the Office of Public Service, asking for information about defects found during all inspections of the RPV at Sizewell B. He wanted to know the apparent nature of each defect; its location; the depth of each defect within the vessel wall; and its maximum dimensions. He said that he wanted to check the level of risk to the public should the RPV explode. He asked that his request be passed to an appropriate person for reply. His request was passed first to the Department of Trade and Industry (DTI), who then, on 5 August, referred it to HSE.

Departmental reasons for refusing access
9.  	On 15 August HSE wrote to Mr X, refusing the request. They referred to the conclusions of the public inquiry -  to which he had given evidence -  about the safety of the RPV, and went on to say that NII had seen the results of Sizewell B's first outage, including the inspection of the RPV, and were satisfied that the reactor was safe to return to power. HSE said that the information sought was "relevant information" for the purposes of section 28 of HSWA 1974 (paragraph 6). They explained why they considered none of the exceptions to the prohibition on disclosure applied and said that giving the information to Mr X would be a criminal offence. In addition, they cited Exemption 15 in Part II of the Code.

10. 	Exemption 15 is headed "Statutory and other restrictions". The relevant part, paragraph (a), covers:

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

11. In the meantime, DTI had passed to BE (NEL's parent company and owners, with NEL, of the information sought by Mr X) another copy of Mr X's request. On 22 August BE wrote to Mr X, saying that no defects which would have cast doubt on the structural integrity of the RPV before it had been put into service had been found during inspections. BE (who are not within the Parliamentary Commissioner's jurisdiction and are not bound by the Code) did not provide the detailed information sought by Mr X.

12.  	On 27 August Mr X wrote to HSE asking them to review their decision and repeating his request for disclosure of the information. HSE's Open Government Complaints Panel met on 19 September to consider his request. HSE sent a substantive reply on 10 October. They said that the Panel had agreed unanimously that as none of the exceptions contained in HSWA 1974 applied, the information could not be disclosed; and that a refusal because of a statutory prohibition was a refusal under Exemption 15(a) of the Code. They were satisfied that their letter of 15 August fully explained why HSE could not meet the request.

13.  	Mr X remained aggrieved by HSE's refusal to provide him with the information and in October 1996, through the Member, he sought the then Commissioner's intervention. The then Commissioner was unable to consider taking up Mr X's complaint at that point, as he had not been shown evidence that HSE had been asked to review their initial decision to refuse the request. After Mr X had provided that evidence, the present Commissioner agreed to investigate.

14.  	When giving me HSE's comments on the complaint, the Director General said that, as with all requests for information, HSE's approach had been to determine what information could be given to the applicant. Information on defects found during inspection was supplied to HSE under requirements of the relevant Nuclear Site Licence Condition. That information was "relevant information" since the power to impose such conditions derived from NIA 1965, a relevant statutory provision as defined in HSWA 1974 (paragraph 6).

15.  	The Director General said that BE, as the ultimate provider of the information, had been asked by HSE for consent to disclose it, but that consent had not been given. HSE had also tested Mr X's request against the other exceptions to the prohibition on disclosure imposed by section 28 of HSWA 1974, but had concluded that they did not apply. When considering whether section 28(3)(b) permitted disclosure in a particular case, HSE were bound to judge whether the health and safety of the the person requesting the information could be secured or protected directly by such disclosure; or whether, alternatively, that person could take action to secure or protect the health and safety of others who might be affected by the work activity in question. HSE did not consider that either of those requirements were met in this case. While a definitive interpretation of the relevant sections of HSWA 1974 could only be given by the courts, the Director General was satisfied that there were no wider health and safety purposes to be served by releasing the information to Mr X. Mr X's concerns had been put to the public inquiry, at which expert consideration had been given to the design of the RPV. NII had seen the result of the Sizewell B's first outage inspection, and were satisfied that the reactor was safe to return to power.

Investigation
16.  Mr X's complaint is similar to one investigated by the Commissioner's predecessor (published in January 1997 in First Report - Session 1996-97 Selected Cases 1997 - Volume 1: Access to Official Information). In that earlier case, the complainant, like Mr X, was seeking information given to HSE under the provisions of NIA 1965, which was therefore "relevant information" for the purposes of section 28(2) of HSWA 1974. The then Commissioner was not persuaded by the earlier complainant's argument that HSE's general duty under section 11(2) of HSWA 1974 to provide information to the public on health and safety matters could be read with section 28(3)(b) in such a way as to allow HSE to release any information requested of them. He found that while the complainant's purpose in seeking the information, with a view to making it publicly available, might have been a health and safety purpose from the complainant's own viewpoint, it was not a health and safety purpose in HSWA 1974 terms. It was HSE's contention in that case (as it is in this) that the exception to the prohibition on disclosure represented by section 28(3)(b) could be relied upon only where there was a specific health and safety purpose in the release of the information; and that it did not apply to disclosure to the public at large on general principles of openness or reassurance. The test which the then Commissioner applied in his assessment of the earlier case, and the one which must be applied here, is whether releasing the information in question would serve a health and safety purpose as intended in HSWA 1974.

17.  The Parliamentary Commissioner agreed to investigate the current complaint because Mr X's experience and knowledge of the nuclear industry, and his description of himself as an independent assessor of risk from nuclear power stations, raised the possibility that HSE might be entitled to disclose the information to him as a person concerned with health and safety as defined in section 11(2)(c) of HSWA 1974 (paragraph 7). My investigation sought to clarify:

(i)	what information HSE held which was relevant to Mr X's request;

(ii)	Mr X's exact current status in relation to nuclear safety matters; and his purpose in seeking the information ; and 

(iii)	how far HSE had been aware of that status and purpose; and whether they had sufficiently taken that knowledge into account in considering his request.

18.  The Commissioner's staff obtained from HSE copies of the reports submitted by NEL to NII on each of the three stages of the outage. They established that the information Mr X requested was submitted by NEL under the terms of their site licence and is, therefore, "relevant information" for the purposes of section 28 of HSWA 1974.

19.  In addition, the Commissioner's staff made enquiries of Mr X about his current status in relation to the nuclear industry. In answer to those enquiries, he said that he had not been connected in any way with the nuclear industry since his retirement. Expanding on his reasons for requesting the information, he explained that he intended to use information about defects to assess whether the risk of the RPV exploding had increased above the level accepted by the Sizewell B public inquiry and, if so, by how much. He said that once the information and its implications for safety became public knowledge, members of the public would be able to exercise their judgement properly. He said that he was seeking visible public accountability.

20.  The Commissioner's staff also obtained copies of HSE's internal guidance on disclosure of information. Concerning information requests affected by section 28 of HSWA 1974, the guidance says:

 	"The identity of the person making the request for information or the reason for which they want the information are not generally to be taken into account in deciding whether to disclose information. However, these may be relevant in deciding whether disclosure is restricted by section 28 of [HSWA 1974]"; 

	and later, regarding the relationship of section 28 to the Code:

 	"Section 28 allows disclosure of information in certain circumstances but does not require such disclosure. However, [the Code] creates a presumption of disclosure. It is the policy of [HSC] that wherever section 28 allows information to be disclosed HSC/E will disclose it, subject to the exempted categories of information in the Code."

21.  In the light of that guidance, and other documents which showed that HSE were fully aware of Mr X's experience in the nuclear power industry, the Commissioner's staff examined their handling of his request. In refusing his initial request, HSE had explained why they considered he did not benefit from any of the exceptions allowing disclosure of restricted information. The Open Government Complaints Panel reviewed the request in the light of each of the exceptions. In their consideration of section 28(3)(b), they paid particular attention to the question whether, had the information been released, Mr X would have been in a position to promote the health and safety of those affected by Sizewell B activities.

Assessment
22. 	I looked first at whether, in the light of their knowledge of Mr X, including details previously known to them as well as those he had provided when making his request, HSE had properly considered whether information could be made available to him under section 28(3)(b) of HSWA 1974. In this connection, I commend the comprehensiveness of HSE's guidance to staff on how to respond to requests for information where disclosure may be restricted under section 28 (paragraph 20). I am satisfied that HSE followed that guidance in this case; and that they took account of all the information available to them about Mr X's background and status. I am not persuaded that their refusal under section 28 to release the information to Mr X, in the absence of BE's consent (which was not forthcoming), cannot be sustained . I do not therefore consider that I should hold that HSE were in breach of the Code in relying on Exemption 15 in Part II of the Code in refusing to disclose the information.

23. In reaching that conclusion I took the view that, in the circumstances of this case, the onus of showing that the statutory restriction did not apply, in other words that his status and purpose brought him within the terms of section 28(3)(b) (paragraph 6) fell, at least in part, on Mr X himself. Although I did not uphold his complaint that HSE had acted in breach of the Code, I went on to consider whether the further details about his status and intentions obtained in the course of the investigation might provide a basis on which HSE could be asked to reconsider the question of disclosure. There is nothing in those further details to suggest that Mr X has any formal role in securing the health and safety of those affected by work activities at Sizewell B, such as would enable HSE to release to him health and safety information under section 28(3)(b) of HSWA 1974. My investigation has established that Mr X's intention was to bring any information obtained about any defects in the RPV at Sizewell B (with his own commentary on such information from a safety point of view) to the attention of the public (paragraph 19). For reasons identical to those given by the previous Commissioner in the case referred to above (paragraph 16), I am not persuaded that that is a health and safety purpose in HSWA 1974 terms. I therefore find no ground on which HSE could be asked to review their refusal.

Conclusion
24.  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.

ANNEX

GLOSSARY

BE	- British Energy plc

the Code	- the Code of Practice on Access toGovernment
  	Information

DTI	- Department of Trade and Industry

HSC	- Health and Safety Commission

HSE	- Health and Safety Executive

HSWA 1974	- Health and Safety at Work etc Act 1974

NEL	- Nuclear Electric Ltd

NIA 1965	- Nuclear Installations Act 1965

NII	- Nuclear Installations Inspectorate

PWR	- Pressurised Water Reactor

RPV	- Reactor Pressure Vessel