The Commissioner's authorised official affirmed the decision of the HSA that the records were outside the scope of the FOI Act by virtue of section 46(1)(dc) thereof (as inserted into the Act by section 74 of the Safety, Health and Welfare at Work Act, 2005).

Case Summary

Whether the HSA is justified in its decision to refuse access to records sought in a request under section 7 of the FOI Act, relating to its investigation into an accident at a work premises that resulted in the death of the individual concerned.

Date of Decision: 26.02.2010

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

Background:

The Applicant's original request, dated 26 August 2009, sought all documents and reports held by the HSA in respect of the accident that led to the individual's death, as well as documents showing why the HSA decided not to take any prosecutions in respect of this incident. The HSA's decision of 23 September 2009 refused access to records concerned, citing section 46(1)(dc) of the FOI Act and section 74 of the Safety Health and Welfare at Work Act, 2005 (the 2005 Act). Following the Applicant's internal review application of 5 October 2009, the HSA upheld its earlier refusal of the records by way of an internal review decision of 20 October 2009. The Applicant sought a review by this Office of the HSA's decision on 2 December 2009.

In carrying out my review, I have had regard to the above correspondence; to copies of the records at issue (provided to this Office for the purposes of this review); to the HSA's submission to this Office dated 10 February 2010; and to a letter sent to the Applicant by Ms Phyllis Flynn of this Office, dated 16 December 2009. I have also had regard to the provisions of the FOI Act and of the 2005 Act.

Preliminary Matter

I note that the HSA did not provide the Applicant with a schedule of the relevant unreleased records, which I understand it considered would disclose the content of records that are not, in the first instance, subject to the FOI Act.

Firstly, it should be noted that section 43 of the FOI Act requires that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This is in order to preserve any party's right of appeal to the High Court on a decision I might make that particular records are not exempt. It thus follows that I must be circumspect in my description of any record that a public body contends is not subject to the FOI Act. However, it seems to me that this does not preclude me from describing the 16 records under the scope of this review as being comprised of an investigation report, witness statements, an incident report, and various exhibits.

I am satisfied that the correspondence sent to the Applicant by the HSA on 23 September and 20 October 2009, and by Ms Flynn on 16 December 2009, have made clear the nature of records that are outside the scope of the FOI Act by virtue of section 46(1)(dc) thereof. It seems to me that the Applicant would have been in as good a position to make an argument that section 46(1)(dc) is not relevant to an overall category of record (such as a record created under the 2005 Act in relation to the HSA's enforcement functions under that Act) as it would in relation to a specific record in that category (such as an investigation report created by the Authority under the 2005 Act that relates to the HSA's enforcement functions under that Act).

While I note that the Applicant made no argument to either the HSA or to this Office as to why it considers that the unreleased records are subject to the FOI Act, I do not consider that its ability to do so was in any way affected by the lack of a schedule of the records at issue in this case.

Scope of the Review

My review is concerned solely with the question of whether the HSA is justified in concluding that the unreleased records of relevance to the request are not subject to the FOI Act, on the basis that they are records relating to or arising from its enforcement functions under the 2005 Act.

Submissions

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Findings

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". The HSA says that the records which it is refusing to release in this case arise from its investigation into the incident that led to the individual's death, which relate to the enforcement functions of the HSA as provided for by the 2005 Act.

Section 74 of the 2005 Act inserted a new subsection into section 46 of the FOI Act (i.e. section 46(1)(dc)), which provides that 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)."

Having examined the records at issue in this case, I accept that certain of them were created by the Authority under the 2005 Act as a result of its investigation of the incident that led to the individual's death. I also accept that the remainder, while not necessarily created by the Authority, are held by it under the 2005 Act, also as a result of the investigation concerned.

However, if the records relate to or arise from functions of the HSA other than enforcement of the 2005 Act, the FOI Act applies to them and they are potentially releasable under that Act. In a recent review by the Information Commissioner - Mr L c/o Solicitors M & the HSA - Case 090285 - an argument was made that general investigations of workplaces by the HSA are separate and distinct from the its enforcement powers.

The Commissioner found that this was an overly narrow interpretation of the phrase "enforcement functions" which, if intended by the 2005 Act, would have been made clear in the explicit wording of the amended section 46 of the FOI Act. She said she considered "enforcement functions" to be functions intended to ensure observance of or obedience to the law, and that the appropriate interpretation of the phrase was a literal one which included inspection reports and other records arising from an inspection.

Thus, having considered the Commissioner's comments in case 090285, and having considered the content of the records at issue in this case, I am satisfied that they relate to or arise from the HSA's enforcement functions under the 2005 Act. I am also satisfied that they do not relate to the general administration of the HSA since they are not concerned with matters such as finance or staffing. Accordingly, 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, I hereby affirm the decision of the HSA in this case.

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 a review must be initiated not later than eight weeks from the date of this letter.

Seán Garvey

Senior Investigator

26 February 2010