This
section sets out what infomration HSE did and did not
provide under this information regime and before the
FOIA 2000 came into force.
HSE’s
internal guidance to inspectors
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HSE
Practice: HSE’s practice was, on request,
to make all internal guidance available, though
certain sections of the guidance may not be
released
Reasons:
The reasons why the HSE released this information
is that:
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It
is lawful for this information to be provided
- it is not caught by section 28 of the
HASAW Act 1974, since this information was
produced by the HSE itself (rather than
being obtained or given to the HSE). There
was therefore no legal restriction on why
the HSE can not provide the information |
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In
addition, section 3(2) of Part 1 of the
Open government Code requires government
bodies to make available "rules, procedures,
internal guidance to officials, and similar
administrative manuals as will assist better
understanding of departmental action in
dealing with the public" |
The HSE can only decide not to make available
particular guidance or particular parts of the
guidance, if:
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it
falls into one of the exemptions contained
in part 2 of the Open Government Code (click
here to see what these are) and |
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release
would "cause significant harm"
(the test contained in HSE’s Openness
Statement.) |
The two exemptions that are used most frequently
by the HSE to argue that particular sections
of the operational circulars etc should not
be disclosed are that their disclosure:
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"would
harm the frankness and candour of internal
discussion" [exemption 2] |
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"could
prejudice the enforcement or proper administration
of the law, including the prevention, investigation
or detection of crime, or the apprehension
or prosecution of offenders" [exemption
4] |
However,
even if it is the HSE’s view that particular
information falls within one of these exemptions,
HSE’s Openness Statement and GAP 1 makes
it clear that the HSE also have to be of the
view that ‘significant harm’ would
be caused before it can refuse to release information.
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Annonymised statistical information etc
Statistics on levels of reported incidents (deaths,
injuries etc) in different industries and different
parts of the country, levels of investigation, levels
of enforcement notices and prosecution and details of
sentencing.
The HSE has a sophisticated database – known
as 'FOCUS' – that contains a great deal of anonymised
information in relation to each reported incident, whether
it was investigated, and details of any prosecution.
It also contains details of all ‘contacts’
made by the HSE to any duty holder. If you want to find
out about the database, ask the HSE to send you a copy
of the ‘FOCUS Handbook’ which gives details
of all the ‘fields’ of data held in the database.
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HSE
Practice: HSE makes this available though
depending on the accessibility of the information,
there will be a charge of £25 an hour.
Reason: It is lawful to provide this
information: although information collected
by the HSE under RIDDOR 95 is "relevant
information" which should not be disclosed,
there is an exception for information which
is in a form "calculated to prevent it
from being identified as relating to a particular
person or case", which is what is the case
here.
Statistics of the kind do not fall into the
exceptions of Part 2 of the Open Government
Code, and so can be released
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Conviction/Notices concerning named companies or duty
holders
Details of (a) health and safety offences committed
by companies, individuals and other duty holders (where
the HSE is the prosecutor) and (b) improvement and prohibition
notices imposed on companies etc by the HSE
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HSE
Practice: This information was available
on HSE’s prosecution and notices database.
Click Here to see this.
The conviction database only contains information
on those companies and individuals who have
been convicted – not on defendants
who have been prosecuted and acquitted.
The HSE puts the information onto the prosecution
database, 6 weeks after the conviction –
in case the company appeals against its conviction
or sentence.
The database only goes back to April 1999.
The
Notices database contains information on notices
imposed from April 2001. Click
Here to see this
You can obtain data that goes back to April
1996 if you request directly to the HSE.
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Details of Deaths/injuries etc reported to the HSE concerning
Particular Named companies or Duty holders
Companies and other duty holders are under a legal
duty to inform the HSE concerning particular incidents:
- deaths of workers and members of the public;
- major injuries;
- over-three day injuries
- dangerous occurrences
- diseases
- gas incidents
To see more on what needed to be reported, click
here
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HSE
practice: The HSE never provides names
of people who have died or been injured
and will only provide (anonymised) details
of incidents reported by a particular
company if, in the view of the HSE disclosure
of the information would:
- serve a health and safety positive safety
purpose, or
- prevent harm to the public, or
- it would allay concern amongst the public
Reasons:
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The
Data Protection Act (the DPA) prevents
the HSE from providing, to the public,
names of any individuals who have
died or been injured. |
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The
DPA does not, however, prevent
the HSE from providing details of
those incidents without providing
the names of the individuals involved
(i.e.‘anonymised’). |
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However,
this information is considered to
be ‘relevant information’
under section 28 of the HASAW Act
- and can lawfully only be disclosed
under certain limited exceptions.
The only exemption that is likely
to apply is if the provision of information
serves the "purpose of any function"
of the HSC/E - which the HSE defines
as:
- serving a health and safety positive
safety purpose, or
- preventing harm to the public, or
- allaying concern amongst the public
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Reports
of HSE inspections or investigations
Reports of inspections and investigations undertaken
by the HSE inspectors into companies and other duty
holders
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HSE
Practice: it appears to have been HSE practice
not to provide the reports of the inspection
or investigation itself, but to provide you
with summaries of this report. Para 1.77 of
GAP 1 states
‘There
is no right to have a copy of the inspection
or investigation report itself … However,
in most cases factual aspects of a report
– e.g. the premises inspected, the data
of inspection, what was found, any breaches
of health and safety legislation, any action
required and the date by which it is required
…. In particular, care should be taken
not to disclose information on the reasons
inspectors exercised their discretion in a
particular way as the cumulative effect of
such disclosure could adversely affect HSE’s
abilities to carry out its functions."
Reasons:
Information collected by HSE inspectors should
not be released, but the HSE seems to accept
that disclosure of some information from these
reports would "serve the purpose of HSC/E’s
functions" and therefore be disclosable
unless the HSE is of the view that release of
the information came within one of the exceptions
of the Open Government Code and would cause
significant harm.
CCA Comments: GAP 1 states that: "care
should be taken not to disclose information
on the reasons inspectors exercised their discretion
in a particular way as the cumulative effect
of such disclosure could adversely affect HSE’s
abilities to carry out its functions,"
– however the test that should be used
by the HSE is whether significant harm
would be disclosed by the disclosure.
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Witness
Statements
When HSE undertake investigations into reported
incidents they take statements from witnesses.
HSE
Practice: The HSE is not willing to disclose
witness statements to any member of the public
even if the statements relate to an investigation
concerned with an injury or death and the member
of the public (who wants a copy of the statements)
is either the injured person or a member of the
bereaved family.
The only exception to this is when the witness
who gave the statements consents to their release.
Even when the statements are sought for the purposes
of an inquest, the HSE does not provide the statements.
In fact the HSE writes to coroners informing them
that they should not release any information or
statements which the HSE has provided the coroner
for the purposes of a forthcoming inquest
Reason: a 'witness statement' is information
obtained "as a result of the exercise of"
HSE inspectors powers and so by section 28(7)
can only be disclosed in limited situations which
the HSE does not consider exists.
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Reasons
for Decisions not to prosecute companies or directors
Bereaved families or injured workers are often interested
in why the HSE has made a decision not to prosecute
a company/director or if it has decided to prosecute
a company, why no individual manager or director.
HSE Practice: In deciding whether or not to
prosecute the HSE should consider (a) the tests set
out in the Crown Prosecution Service’s Code of
Crown Prosecutors and (b) the criteria set out in
HSE’s own Enforcement Policy Statement.
In effect the HSE, the HSE must decide whether there
is sufficient evidence to prosecute and if there is,
whether the criteria set out in paras 39-41 of the
Enforcement Policy Statement apply (to
read about this click here).
It has been HSE practice to give families or injured
workers limited information as to why the HSE have
decided not to prosecute. Sometimes, the HSE simply
says there was ‘insufficient evidence’ to
prosecute, and nothing else.
The practice is very different from the way the CPS
deals with bereaved families where detailed reasons
are provided.
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