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Restriction on information provision - section 28, HASAW ACt |
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Section
28 of the Health and Safety at Work Act 1974 (the 1974
Act) prohibited the release of two categories of information
which were in the HSE’s possession:
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a
category of information called ‘Relevant
Information" (section 28(1)) This was principally
information which duty holders had a legal obligation
to provide to the HSE. For example:
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information
about deaths, injuries etc required by the
Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 1995. |
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safety
reports required by the Control of Major
Accident Hazards Regulations 1999 COMAH. |
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offshore
safety cases required by the Offshore Installations
(Safety Case) Regulations 1992. |
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information
obtained by inspectors in the course of their
activities (section 28(7)). This included any
information – including witness statements
- that inspectors obtained in the course of preventative
inspections or investigations into reported incidents.
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However Section 28 set out a number of exemptions.
Both categories of information could be provided in
the following situations:
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the
person who gave the information had consented
to its disclosure.
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should be noted that the guidance to inspectors
stated that the suppliers of information
"should not be given the opportunity
to make their consent conditional on the
identity of the enquirer or the enquirer’s
purposes." |
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if
disclosure would serve "the purpose of any
function" of the HSC/E.
What are the ‘functions" of the
HSC/E?
The key purposes of the HSC/E is set out in section
1(1) of the 1974 Act. These are:
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securing the health, safety and welfare
of persons at work; |
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protecting
persons other than persons at work against
risks to health or safety arising out or
in connection with the activities of persons
at work; |
Guidance
to the HSE (Appendix B, Para 1.B12, in GAP 1)
stated that information could be released if it:
"serves
these broad purposes. For instance, disclosure
would be permitted where:
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its
object is to prevent harm to the public |
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it
would serve a positive health and
safety purpose, or; |
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there
is concern amongst the public and
disclosure can allay that concern" |
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The
guidance also makes the following points:
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The
purpose of disclosure determines whether
it will be lawful, rather than the individual
or body to whom the disclosure is made.
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Where
HSE judges that the public, or sectors of
the public, are in need of information for
the purposes described above it, is entitled
to disclose it. |
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The
range of circumstances in which disclosure
of information would serve a positive health
and safety purpose is broad, and the HSE
should consider each case on its merits.
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It
should be noted that whether something was or
was not a 'function" of the HSE was a very
contentious area and one which, in the CCA's
view, the HSE tended to interpret in a conservative
manner.
For example, would providing information to
bereaved families serve 'function" of the
HSC/E?
The HSE did not think so. It stated in its Guidance
"However,
the health and safety purpose must be broader
than, for instance, meeting the natural concerns
of relatives of victims who have died in accidents.....
The provisions of Section 28, as presently
drafted, do not provide for such understandable
concerns, in themselves, to constitute a proper
reason to make a disclosure to victims and
relatives of victims of accidents."
However
it ddid state that:
"Wherever
possible we should look to provide information
in these circumstances in a redacted form
- i.e., the information should be made available
to the relatives of victims in a way which
does not disclose commercially sensitive or
other confidential material."
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If
the information was "for the purposes of
any legal proceedings".
If the legal proceedings concerned personal injury
compensation claims, the Civil Procedure Rules
stated that "legal proceedings" come
into existence once the claim form has been issued.
It should be noted that the HSE argues that Coroners’
Inquests are legal proceedings. |
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for
the purposes of a special "inquiry"
set up by the HSC by virtue of section 14(2) of
the Act |
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for the purposes of a report published by the
HSC/E concerning an incident subject to legal
proceedings or subject to a special inquiry (by
virtue of section 14(2)). |
In addition, "relevant information" could
be disclosed
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if
the information is in a form "calculated
to prevent it from being identified as relating
to a particular person or case"
This allows the HSE to release statistical information.
This exemption would not apply if you were seeking
information about a particular company or duty
holder, but it did apply if you were seeking non-company
specific information (i.e. information about RIDDOR
incidents in a particular local authority or a
particular industry.) |
So
in summary
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Is
the information sought, ‘relevant information’
or information obtained by the HSE inspectors
in the course of their activities? |
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If
it is, then it can only ‘legally’ be
released if it comes in one of the exemptions
set out above. |
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If
not, then it can be ‘lawfully’ released |
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If
the information can be lawfully released, the
HSE will only do so after consideration of the
‘Open Government Code’ and the ‘Significant
Harm’ test (see below) |
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