Whether the HSA's decision to refuse access to records concerning a workplace accident is justified under section 46(1) of the FOI Act

Case Summary

The Commissioner affirmed the decision of the HSE. She found that Section 46(1) (dc) of the FOI Act, as amended by section 74 of the Safety, Health and Welfare at Work Act 2005, applied to the records in this case so that the FOI Act does not apply to records held or created by the HSA relating to or arising from its enforcement functions.

Date of Decision: 22.01.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

In the Applicant's FOI request to the HSA which was validated by the payment of the statutory fee on 13 July 2009, he sought confirmation of the position of the HSA and guidelines and advice issued to an employer arising from an accident in the workplace. the HSA appears to have treated the request as relating to the 14 records held by it in relation to the incident in question.

In its decision letter of 11 August 2009, the HSA refused access to the records on the basis of Section 46(1)(dc) of the FOI Act. It said that the records are held or created by its inspectors on foot of investigations arsing from the HSA's enforcement functions and that, accordingly, the FOI Act does not apply to them. The Applicant then sought, on 25 September 2009, an internal review of that decision. In its internal review decision, the HSA affirmed the original decision. The Applicant applied to my office for a review on 30 October 2009.

In carrying out my review, I have had regard to the following:

• the HSA's decisions and submissions in the matter;
• communications between the Applicant and the HSA;
• communications between my Office and the Applicant's solicitors;
• the content of the records and
• the provisions of the foi act and of the Safety, Health and Welfare at work act, 2005.

Elizabeth Dolan, Senior Investigator of my Office, wrote to the Applicant on 23 November 2009 and on 22 December 2009 setting out her views on the case and inviting submissions. As the Applicant's solicitors have responded to ms dolan's letters disputing her view that the public body's decision is justified and have indicated that they wish to have a formal ruling, i have decided to now bring the review to a conclusion by issuing a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner (the Commissioner).

Scope of Review

The 13 records remaining within the scope of the review have been described to the Applicant. One of these - the incident report - has already been released outside of FOI and this review will not deal further with it. The records comprise reports on HSA inspectors' site visits, photographs taken during the investigation, improvement notice, correspondence with the employer, investigation decision form and site safety statement.

My review is concerned solely with the question of whether the HSA is justified in its conclusion that none of the records held fall to be considered for release under the FOI Act on the basis that they are records relating to or arising from its enforcement functions.

Submissions

.

Findings

Analysis and Findings

Preliminary Issues

Section 34(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the HSA to satisfy me that its decision is justified.

Ms Dolan has already informed the Applicant, in response to his solicitor's expression of surprise that the records of the HSA may be outside of the scope of the FOI Act, that similar records were covered by FOI and indeed, sometimes released, prior to the enactment of the Safety, Health and Welfare at Work Act 2005.

Statutory Position

Section 74 of the Safety, Health and Welfare at Work Act, 2005 ("the 2005 Act") amended section 46(1) of the FOI Act so that section 46(1)(dc) states the FOI Act does not apply "to a record held or created under the relevant statutory provisions by the Health and Safety Authority or an employee of the Authority, relating to or arising from its enforcement functions (other than a record concerning any other function of the Authority or the general administration of the Authority)."

I do not think that it is in dispute that the records as described are held or created under the 2005 Act. I am satisfied that the records do not relate to the general administration of the HSA since they are not concerned with e.g. such matters as finance or staffing. What I must examine is whether any of the records do not relate to or arise from the HSA's enforcement functions since, if they relate to or arise from functions other than enforcement of the 2005 Act, the FOI Act applies to them and they are potentially releasable under the Act.

The 2005 Act's purpose is summed up in its Long Title - "An Act to make further provision for securing the safety, health and welfare of persons at work and for the enforcement of the relevant statutory provisions..." .

Section 34(1) of the 2005 Act requires the HSA, inter alia, to:

(a) promote, encourage and foster the prevention of accidents, dangerous occurrences and personal injury at work in accordance with the relevant statutory provisions;

(c) encourage and foster measures promoting the safety, health and welfare of persons at work; and

(d) make adequate arrangements for the enforcement of the relevant statutory provisions.

It is clear from the 2005 Act that inspectors authorised by the HSA have a range of powers available to them to enforce the statutory requirements. Section 64 of the Act empowers inspectors to enter and inspect places of work, require employers to produce records and other information, take photographs, measurements or other tests as necessary. Section 66 of the 2005 Act provides for the issuing of an Improvement Notice to persons in control of work activities in the case of contravention of the legislation or failure to submit an improvement plan as directed.

Section 70(1) of the 2005 Act allows the HSA to "investigate the causes and circumstances surrounding any accident, incident ... or any other matter related to the general purposes of this Act, ..."

The HSA says that the records which it is refusing to release in this case were created in the course of the investigation into an accident involving the applicant and that the records came into being pursuant to the powers of its inspectorate under the 2005 Act and/or as a result of its investigation and report on foot of the reported incident.

Enforcement Functions

I note that while Chapter 2 of Part 6 of the 2005 Act is specifically concerned with enforcement, there are references to investigations and enforcement type activities throughout the 2005 Act. The Applicant argues that general investigations of workplaces are separate and distinct from the HSA's enforcement powers. Even if I were to accept that this is the case, it is clear that the records in this case were created and arose from the reporting of a specific incident as opposed to ''general'' investigations. The Applicant suggests that an investigation conducted by the HSA under section 64 of the Act which does not result in ''Enforcement'' as provided for in sections 65, 66 and 67 of the 2005 Act, does not generate records which relate to or arise from the enforcement functions of the HSA. The Applicant also submits that some of the sections in the Part 6 of the 2005 do not contain the words "enforce'' or ''enforcement''. I consider that if I were to accept the Applicant's arguments, I would be taking an unduly narrow interpretation of the phrase " relating to or arising from its enforcement functions". If the intention of the provision had been to restrict enforcement functions to those provided for under sections 65, 66 and 67, I have to assume that this would be explicitly stated in section 46(1)(dc). In any case, I note that the notice served on the employer arising from the HSA's inspection is stated to be pursuant to section 66 of the 2005 Act.

Conclusion

Having regard to the above, I consider that the records at issue relate to or arise from inspections or examinations of the circumstances surrounding the accident and to follow up actions by the HSA to ensure compliance with the legislation. It is clear to me that enforcement functions are functions intended to ensure observance of or obedience to the law. I believe that the appropriate interpretation of ''enforcement functions'' is a literal one which has to include inspection records and other records of the type at issue in this case arising from inspection and follow up action with the employer to ensure compliance with the 2005 Act. It seems to me that to ascribe any other meaning to the phrase would not be reasonable. Thus, I find that the records are outside the scope of the FOI Act by virtue of section 46(1)(dc) thereof.

Decision

Having carried out a review under section 34(2) of the FOI Act, 1997- 2003 (as amended), I hereby affirm the decision of the HSA.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Emily O'Reilly

Information Commissioner

22 January 2010