The disclosure of information: what is the "public interest"?
Howard Fidderman looks at a cautious HSC response to the Freedom of Information Act.
The HSC is proposing to remove some of the restrictions on the information on employers that the HSE is allowed to make publicly available. The proposals1 would bring the HSE's disclosure practice into line with the Freedom of Information Act 2000 (FoI) and will mean that the HSE will have to take account of wider public interest arguments when deciding whether or not it can release information. The consultation exercise is also noteworthy because it is piloting an interactive web-based system for seeking the views of stakeholders (see box 1 ).
Most of the information that the HSE holds on organisations comes from either:
compliance with a legal duty, for example submitting a safety case or reporting an injury; or
the legal powers of inspectors to require persons to answer questions, produce documents and cooperate with investigations.
Section 28 of the HSW Act restricts the HSE's disclosure of this information to third parties without the consent of the provider to three circumstances:
legal proceedings;
in connection with the HSC/E's functions under the HSW Act (ie securing the health, safety and welfare of persons at work and protecting non-employees, including the public, against risks to health or safety arising from, or in connection with, work activities); or
as otherwise provided in law, for example under the Data Protection Act (DPA) and anti-terrorism legislation.
The new right
Section 28 does not, therefore, currently allow the HSE to use the public interest as a reason for releasing s.28 information. The HSE's consultation manager, Keith Pritchard, says that the HSC's proposals would result in the HSE "taking account of the strong presumption in the FoI Act that the public interest requires information to be made available".
The proposed amendment would in future allow the disclosure of s.28 information "to any person for the purposes of keeping that person informed about matters relating to health and safety". The change will apply to the HSC, the HSE and its inspectors, and other authorities and inspectors that enforce the HSW Act.
The new right will be subject to:
the exceptions laid down by the FoI Act, ie where disclosure of the information would not be in the public interest, for example because it would prejudice law enforcement, or because it would constitute an actionable breach of confidence;
restrictions on the disclosure of information that apply by virtue of any statutory provision that falls outside the HSW Act, for example the DPA, the Official Secrets Acts 1911-1989 and the Human Rights Act 1998;
statutory provisions implementing EC obligations; and
rules relating to contempt of court.
The beneficiaries
The changes would mean that the HSE would no longer be prevented from:
providing bereaved relatives with the same "personal data" that non-fatally injured persons are entitled to receive under the DPA (see box 2 );
making available information provided by a company that has subsequently gone out of business or cannot be traced, thus making it impossible for the HSE to seek consent. The HSE says that there have been instances where it holds s.28 information that should be in the public domain, but that it could not make it available because it would not be for the purposes of its functions; and
providing information to workers about their former employer. Currently, an inspector can inform workers or their representatives about health, safety and welfare issues relating to the work premises, work activities and action taken by an inspector. But an inspector cannot provide this information to former employees (except in the three specific circumstances ). The HSC believes that "it is difficult to see that there could be a presumption in favour of withholding such information from former employees on the basis that the public interest requires this."
The HSC insists that "for most other situations involving s.28 information . . . there will not be a significant change in the amount of information we need to withhold . . . This is because we will still need to withhold information where significant harm would be caused."
Significant harm and the public interest
In applying a test of "significant harm", the HSE will take "account of the clear presumption that it is in the public interest to make health and safety information widely available. The public interest in openness prevails unless there are stronger public interest arguments against releasing the information." These overriding arguments are usually that disclosure could:
prejudice the administration of justice (for example, a fair trial) or legal proceedings;
prejudice the enforcement of the law, including prevention and investigation of offences and prosecution of offenders;
harm the HSE's ability to discuss issues, express opinions or give advice frankly and candidly; or
harm the HSE's information gathering because information providers do not trust it to maintain confidentiality where there is a legitimate expectation to do so.
This means that the HSE will still not make available information that would reveal the decision-making process and exercise of discretion by inspectors in individual cases. Although disclosure, of itself, might not cause significant harm, the HSC claims that "the cumulative effect of disclosing such information could significantly harm [the HSE's] ability to take appropriate enforcement action. For instance, unscrupulous duty-holders could accumulate enough circumstantial knowledge of the decision-making process to enable them to make prosecution less likely."
Nor will the proposals affect the anonymity of "whistleblowing" individuals and organisations that raise with the HSE concerns about health and safety shortcomings. Such information is protected by both s.28 and the DPA, which implements an EC Directive and therefore takes precedence over any requirement to disclose information. "Consequently, even where it might otherwise have a positive health and safety purpose, the HSC/E cannot, without consent, release information that could enable a person making a complaint to be identified . . . Nor, as a matter of policy, would the HSE seek such consent. It is imperative that people have complete confidence that their anonymity will be protected when they speak out about health and safety shortcomings." The HSE believes that this guarantee is equally important to organisations and that anonymity "is therefore in the public interest".
No outright repeal of s.28
The HSC intends amending s.28 by an order under s.75 of the FoI Act. The order would also remove similar restrictions in the Factories Act 1961 and the Offices, Shops and Railway Premises Act 1963. More extensive changes would require primary legislation and that, says the HSC, is not a practical option.
The HSC admits that its original intention had been to repeal s.28. But it fears that this would have complicated the situation because:
the common law duty of confidence would no longer be disapplied;
there would be no safeguard in the HSW Act preventing the HSE or inspectors from inappropriately disclosing information; and
there would be no provision for the HSE and inspectors proactively to provide information where it might be in the public interest (the general right of access to information in the FoI Act does not apply to proactive disclosures).
In effect, the HSC feels that outright repeal would render the information subject to the common law duty of confidence: "So, instead of having a clear dispensation to disclose for the purpose of our functions, the reverse would be the case. The HSC/E could be sued if it proactively disclosed s.28 information that gave rise to a claim for damages."
Disclosure plans are too limited
Maurice Frankel, of the Campaign for Freedom of Information, says that while he welcomes the move towards providing more information, he is unhappy that the new s.28 disclosure would be restricted to the purpose of keeping a person informed about matters relating to health and safety. This would still prohibit disclosures for other legitimate purposes, for example whether the HSE was spending its resources effectively or avoiding improper conduct. He points out that other public authorities are not prevented from providing similar information.
David Bergman, of the Centre for Corporate Accountability (CCA), agrees. This type of condition, Bergman argues, "mimics the current condition of 'serving a health and safety purpose'". The CCA's experience is that this "is interpreted pretty conservatively by the HSE - even though its formal policy is to be as open as possible". Bergman suspects that "this is because HSE lawyers give defensive advice and indicate that if they provide too lenient an interpretation, the HSE itself could be sued."
Frankel disputes too the HSC's arguments over the enabling provisions of s.28. First, if the section contains useful provisions, why not, he suggests, repeal the prohibitions on disclosure in s.28, and retain the enabling provisions?
Second, he questions the need to retain a sanction against damaging disclosures. The Environmental Protection Act 1990 intentionally contains no disclosure offence, although it requires companies to supply officials with detailed information about new manufacturing processes for the purpose of integrated pollution control. Frankel is "not aware of any suggestion that the lack an offence has led to damaging disclosures of trade secret information."
Instead, confidential business information is protected under the FoI Act by the exemptions in ss.41 and 43, and from deliberate misuse for commercial gain by the prospect of action for breach of confidence. Frankel claims that "it would be extraordinary, in the context of a FoI Act, to remodel s.28 of the HSW Act so as to continue to make it a criminal offence for the HSE to disclose information that causes no harm of any kind to anyone."
Bergman also questions the way in which HSE lawyers interpret whether the disclosure of information is likely to come within the "law enforcement" exemption. The HSE, he says, "over-interprets" this section so that, for example, it refuses to provide information to a bereaved family on the safety and enforcement record of the company where the death of the relative took place. It might be necessary, Bergman suggests, for the HSE to provide "clear guidance on when disclosures of information that it deals with are 'likely' to prejudice the administration of justice".
The Association of Personal Injury Lawyers (APIL) has few reservations about the HSC's proposals. In fact, its only substantial quibble concerns the "significant harm" public interest test. Although APIL "applauds" the test, it is concerned that its use will be restricted by some of the detailed exceptions. In particular, where disclosure would harm the ability of the HSC/E to "discuss issues, express opinions or give advice frankly and candidly - internally or with other public or regulatory bodies".
APIL points out that this exemption may cover the formulation of policy surrounding health and safety issues. It believes it is imperative that all public authorities are held to account on such issues. "Such accountability can only be achieved if there is full and frank disclosure of relevant information where requested. If decision-makers are confident that they have reached the right decisions on health and safety in view of the information and advice available to them, then there should be no problem in defending and accounting for those decisions to the public."
In force January 2005
Consultation on the proposals started on 22 March and will close on 21 May; the changes are due to come into force in January 2005. The substance is unlikely to change because the HSE must reconcile its practices with the FoI Act. Nevertheless, it is open to suggestions about the best way to proceed and would like to learn whether or not:
organisations have concerns that information they might supply under the new arrangements might not be adequately safeguarded; and
information seekers have had past requests refused that would need to be treated differently.
Howard Fidderman is a freelance journalist and editor of HSB.
1 www.hse.gov.uk/consult/live.htm or keith.pritchard@hse.gsi.gov.uk.
