Whether the HSA was justified in refusing to release, in whole or in part, three safety planning records relating to an HSA investigation concerning a construction project under sections 30, 35, 36 and 37 of the FOI ActWhether the HSA was justified in refusing to release, in whole or in part, three safety planning records relating to an HSA investigation concerning a construction project under sections 30, 35, 36 and 37 of the FOI Act
8 August 2019
Background
The applicant in this case was employed by a subcontractor on a roofing project as part of the construction of an expansion to a particular facility when he was injured in a workplace accident in July 2017. The accident was the subject of a subsequent investigation by the HSA.
On 11 December 2017, the applicant submitted a request through his solicitors for all information pertaining to the HSA visit of the site of the accident. It appears the HSA informed the applicant that it would not release any records under FOI while the investigation was ongoing, and suggested that he should resubmit his request in January or February 2018. On 19 February 2018 the applicant did so.
It appears there was a further delay in the processing of the request. The applicant stated that he received no acknowledgment of his request of 19 February 2018 and wrote again to the HSA on 25 July 2018. On 7 August 2018 the HSA requested a copy of the applicant's authorisation for his solicitors to act on his behalf to allow the request to proceed. It stated that it had requested same by email on 8 March 2018.
While the applicant's solicitors stated they received no such email, they forwarded the requested authorisation on 24 August 2018. The HSA issued its decision on the request on 30 August 2018. It granted access in full to one record, granted partial access to seven records, and refused access to further four records, citing sections 30, 36 and 37 of the FOI Act as grounds for withholding records in full or in part.
The applicant sought an internal review of the HSA's decision on 12 September 2018, wherein he argued that four records mentioned in an email that had been released at original decision had not been provided.
In its internal review decision of 1 October 2018 the HSA affirmed its original decision. It clarified that the four records mentioned in the email had been identified at original decision, with three being refused in full under sections 30(1)(a) and 36, and one being part granted with redactions made under section 37. On 2 October 2018, the applicant sought a review by this Office of the HSA's decision in respect of those four records.
During the course of the review, this Office invited submissions from the main contractor and the sub-contractor mentioned in the records. The main contractor (company A) made a submission wherein it objected to the release of the relevant records. The sub-contractor (company B) indicated that it did not wish to make a submission on the matter.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the communications between the applicant and the HSA as set out above. I have also had regard to communications between this Office and the HSA, between this Office and the applicant, between this Office and company A, and to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
During the course of the review it transpired that a record the HSA had claimed at internal review had been part granted, a CRI Response Slip, had not been released. The HSA subsequently released this record to the applicant, redacting the name of an employee under section 37. The applicant indicated to this Office he was seeking a review of the HSA's decision to refuse the three other records provided to the HSA by Company A.
This review is therefore confined to whether the HSA has justified its refusal to grant access to:
- record 1 “[Company B] Method statement for Roofing Works at [location]"
- record 11 " [Company A] - Safety Management System - incorporating the Site Specific Safety Statement"
- record 12 "[Company A] Construction Stage Safety & Health Plan for [the project]"
Preliminary Matter
Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Analysis and findings
The three records at issue consist of construction safety and method plans prepared by companies A and B and provided to the HSA by Company A by email during the course of the HSA investigation.
The HSA refused access to all three records under section 30(1)(a). It argued that parts of records 1 and 12 are exempt under section 36(1)(b), and that parts of all three records are exempt under section 37. Company A argued that all three records are exempt under sections 35 and 36 and that parts of the records are exempt under section 37.
I will address the HSA's claim for exemption under section 30(1)(a) first.
Section 30(1)(a)
Section 30(1)(a) provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for their conduct.
The provision envisages two potential types of prejudice or harm: (i) to the effectiveness of the tests, etc. (i.e. the ability of the test, etc. to lead to a result of some kind), or (ii) to the procedures or methods employed for the conduct of such tests, etc. Where an FOI body relies on section 30(1)(a), it should identify the potential harm that might arise from disclosure, show how the "prejudice" or harm might be caused, and consider the reasonableness of any expectation that the harm will occur.
In essence, the HSA’s argument is that the release of the records at issue could reasonably be expected to reduce the likelihood of such evidence being supplied voluntarily to its inspectors by private companies in the future and that this could reasonably be expected to impair both the effectiveness of its procedures for conducting investigations and of the investigations themselves.
It argued that it is commonly understood among employers and other parties with whom its inspectors have contact in the course of their investigations that its powers to obtain and retain information are solely for the purposes of its investigations and for pursuing enforcement actions against those who breach the relevant legislation. It argued, therefore, that it is reasonable to expect that companies would view the release of such information as a negative outcome and would be less likely to provide the information on a voluntary basis in the future, even where there is a legal requirement to do so.
The HSA said that it was very concerned to maintain its current system of voluntary provision of documentation by third parties as it facilitates the most effective and efficient means of fulfilling its functions. It argued that without this cooperation by third parties its investigations would become much more time-consuming and resource intensive. It provided details of the steps required and the difficulties it faces when invoking its statutory powers to obtain information necessary for its investigations.
The HSA said that the cooperation of companies is an important element of its investigations and that the majority of its evidence is sought and received on a voluntary basis. It stated that documentation is usually provided to HSA inspectors on the day of inspection or forwarded by post or email within a matter of days. It stated that HSA inspectors are required to identify and secure the best available evidence and that a critical factor in characterising as the best available evidence is its provenance, i.e. evidence which is secured as close as possible to the time of the incident. It argued that any delay in securing evidence affects its provenance and compromises the inspector’s ability to investigate.
I accept as a general proposition that the failure of employers and other third parties with whom the HSA’s inspectors engage in the course of investigations to provide necessary information voluntarily could, indeed, reasonably be expected to prejudice the effectiveness of the processes the HSA employs for conducting investigations. However, the question I must consider is whether the release of the records at issue in this case could reasonably be expected to prejudice such voluntary supply of information
It seems to me that the HSA’s argument is that the release of any documentation provided to it during the course of investigations could cause such harm, regardless of the nature of the documentation. In essence, it is seeking to protect all such documentation as a class.
I do not accept this argument. The records at issue in this case comprise relatively standard documentation that any contractor would expect to create and hold largely to comply with relevant safety legislation. Indeed, the HSA has acknowledged in its submission to this Office that the records are in large part template documents.
Record 1 is a method statement that contains details of the methodology for carrying out the relevant roofing works and of the associated health and safety risks and controls to mitigate such risks.
Record 11 contains details of company A’s safety management systems, including details of its various health and safety and staff welfare policies, staff responsibilities, safety training, accident investigation and reporting etc.
Record 12 is a site specific health and safety plan whose purpose is to outline how company A planned to manage and coordinate safety and health during construction.
I understand that companies are required to make such documentation available to a range of people, including clients, employees, sub-contractors and any other person who may be exposed to any risks covered by the statements.
I do not accept that the documents are of a type that the contractor would expect to remain confidential to the extent that their release would give rise to parties with whom the HSA engages refusing to supply such records to the HSA voluntarily in the future. Given the nature and purpose of the documents at issue, I also find it difficult to accept that an employer might not be fully forthcoming in the future in its response to an informal request from the HSA for similar documentation simply due to a concern that the documentation might be subsequently made publicly available under FOI.
In the circumstances, I find that the release of the records at issue in this case could not reasonably be expected to impair the HSA's ability to voluntarily obtain safety statements and similar documents from third parties in future. I find, therefore, that section 30(1)(a) does not apply to the records at issue.
Section 35 - information obtained in confidence
In its submission to this Office, Company A claimed that all three records were prepared and given in confidence to relevant stakeholders, and cited section 35 of the FOI Act. Section 35 provides for the protection of confidential information held by an FOI body. There are two separate operative parts to the exemption.
Section 35(1)(a) provides for the mandatory refusal of a request if
- the record sought contains information given to an FOI body in confidence, and
- on the understanding that the information would be treated by it as confidential, and
- in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
- it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
Section 35(1)(b) provides for the mandatory refusal of a request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law.
Company A has not demonstrated that any of the requirements of either section 35(1)(a) or 35(1)(b) are met in this case to support its assertion that the records were provided in confidence. It is neither apparent from the records, nor from the email in which Company A sent the records to the HSA, that they were provided on the understanding, implied or explicit, that they would be treated as confidential.
Having regard to the nature of the records, the manner in which they were provided, and the lack of supporting arguments from Company A or the HSA, I find that section 35 does not apply to the records at issue.
Section 36(1)(b) - commercially sensitive information
Section 36(1)(b) provides for the refusal of a record where the record concerned contains certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 36(1)(b) is whether disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of the exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner
[2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position. Furthermore, a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. In the Supreme Court case of Sheedy v the Information Commissioner [2005] 2 I.L.R.M. 374,
[2005] 2 IR 272,
[2005] IESC 35 Kearns J. stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
In its submission to this Office the HSA claimed that section 36(1)(b) applies to the sequence of works at section 10 of record 1 and pages 11 to 14, 189 to 191, and Appendix A of record 12. Company A argued that the documents which it had prepared, records 11 and 12, were exempt under section 36.
Section 10 of record 1 contains details of the sequence of works to be carried out by Company B in the installation of the roof at the site.
Record 12 relates to company A. Pages 11 to 14 contain details of the layout of the construction site and brief information concerning the timescale for completing the works, phasing of the works and access to the site. Appendix A runs (pages 174 to 177) details the programme of construction for the project, including the timing and sequencing of works.
The HSA argued that such information comprises technical details, the disclosure of which could reasonably be expected to prejudice the competitive position of the company B in the conduct of its business.
While I accept that the sequence of works set out in both documents is quite detailed, it does not seem to me to contain information of a type whose disclosure could reasonably be expected to result in material financial loss or gain to either company or could prejudice the competitive position of either company in the conduct of their business.
I find it difficult to accept that competitors of the companies could use the information in such a way as to prejudice the competitive position of the companies. It has not been argued, for example that the release of the information could assist competitors in undermining the competitiveness of either company in their efforts to secure future contracts. It is also relevant, in my view, that company B chose not to make a submission on the release of record 10. I find that the HSA was not justified in refusing access to the relevant parts of records 1 and 12 under section 36(1)(b).
Company A argued that section 36 applies to records 11 and 12 in their entirety. In essence, it argued that its health and safety documentation was the result of significant investment of time and resources and release under FOI could allow competitors to copy the plans for free. However, as noted by the HSA itself, the records are largely template documents, prepared in order to comply with relevant health and safety legislation. Even were competitors to copy the records, it is difficult to envisage how this would prejudice Company A’s competitive position, given that all companies in this field are likely to have relatively similar safety documentation on foot of their statutory obligations. Company A has made no specific arguments to explain why or how it expects the purported harm to arise, or pointed to any unique element of the documentation which would be valuable to competitors.
Company A’s concerns are also somewhat undermined by the fact that within both record 11 and 12 is a statement that the documentation will be made available to all employees as relevant. It is commonly understood that health and safety legislation provides that such documentation must be brought to the attention of all employees and other relevant individuals. While not publicly available, it is clear that records 11 and 12 were easily available to individuals on site during the construction project. In that context, it is difficult to accept that disclosure under FOI would give rise to the harm Company A argues will occur.
Company A also argued that release of the records could damage its reputation as it could lead to the applicant’s workplace accident being unfairly associated with the company, in circumstances where it asserted it was in no way negligent. Being relatively standard safety documentation, the records, by their very nature, disclose nothing about the accident itself. It is to be entirely expected that records of Company A, as the main contractor on the site, would be relevant to the HSA’s investigation, regardless of where liability for the accident may rest. I therefore cannot accept that disclosure of the records under FOI, in and of itself, would damage Company A’s reputation.
I find, therefore, that section 36(1)(b) does not apply to records 11 and 12.
Section 37 - personal information
Section 37(1) provides for the mandatory refusal of a request where the FOI body considers that access to the record sought would involve the disclosure of personal information relating to individuals other than the requester. Personal information is defined, at section 2 of the FOI Act, as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual.
The HSA argued that specific sections of all three records contained information of a personal nature, namely the names, contact details and occupations of third parties. It argued that this information comprised personal information within the meaning of section 2 of the Act, and therefore was exempt under section 37. Company A made similar arguments, and also contended that a number of aerial photographs in record 12 contained information relating to the palliative care centre and neighbouring private houses whose release could amount to a breach of privacy.
Having carefully examined the records, I am satisfied that the information comprising the names, contact details and occupations of third parties in each of the three records is personal information relating to those third parties. I find, therefore, that section 37(1) applies to all such information.
The aerial photos contained in record 12 appear to have been sourced from online mapping platform Google Maps, and have had additional site specific information overlaid upon them. A cursory internet search indicates it is possible to view the same imagery as is contained in the records on the Google Maps platform. Nothing in the images within record 12 would appear to disclose personal information relating to an identifiable individual. On that basis, I am satisfied that the aerial photos in record 12 do not comprise personal information within the meaning of section 2 and that section 37(1) does not apply to that information.
Section 37(2) and 37(5)
There are certain circumstances, provided for under section 37(2) and 37(5), in which the exemption set out in section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides that a record, which is otherwise exempt under section 37, may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties concerned, as envisaged by section 37(5)(b) of the FOI Act.
On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. There is a distinction to be made between a request made by a private individual for a private purpose and a request made in the public interest. A public interest (a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law) should be distinguished from a private interest.
While there is a public interest in the HSA being open, transparent and accountable in the manner in which it performs its functions, in this case the gathering of evidence during its investigations, the FOI Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
I consider that the public interest in the release of the information at issue does not, on balance, outweigh the public interest in protecting the privacy rights of the third parties concerned. It is also important to note that the release of records under FOI is essentially regarded as release to the world at large given that the Act places no restrictions on the uses to which the information may subsequently be put. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the HSA was justified in its decision to refuse access to details of the names, contact details and occupations of third parties contained in the records sought by the applicant in this case.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSA's decision to refuse access to the three records concerned. I find that the HAS was not justified in refusing access to the records, apart from details of the names, contact details and occupations of third parties within the records that I have found to be exempt from release under section 37(1).
Right of Appeal
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator
