Case number: 020452
Case 020452. Request for release of names of signatories to two HSA forms - whether release would prejudice or impair the enforcement of, compliance with or administration of relevant health and safety legislation - section 23(1)(a)(ii) - whether release would constitute the release of personal information about the signatories of the forms - section 28(1)
The HSA withheld the names of the signatories to two forms but released all other information. They argued that the information constituted personal information and also that its release would prejudice or impair the enforcement of, compliance with or administration of relevant health and safety legislation. It was confirmed with the requester that the information they were seeking was the names and positions of the individuals rather than their actual signatures.
On review it was decided that the information was not personal information as one of the signatories was a director of the company and his name and position was therefore, by legal requirement, publicly registered and a matter of public information. Similarly, the form signed by the second person had to be displayed publicly on the construction site therefore making this information known to a broader constituency than his family and friends.
It was also decided that the arguments relating to prejudice or impairment of legislation were not valid since the issue of confidentiality would continue to be judged on the individual merits of each case.
Our Reference: 020452
I refer to your appeal to the Information Commissioner ("the Commissioner") under the Freedom of Information Act, 1997 ("the FOI Act"), against the decision of the Health and Safety Authority ("the HSA") not to release certain information to your client, Mr. X
Following your FOI request of 26 June, 2002, the HSA released all relevant information with the exception of the signatures on two forms which were withheld on the grounds that they constituted personal information. The HSA cited the exemption contained in section 28 of the FOI Act as the basis of this decision. This was duly upheld on internal review and in addition, section 23 was invoked. This section relates inter alia to "the enforcement of, compliance with or administration of any law". On 2 September, 2002, you appealed against this decision to the Commissioner.
The Commissioner has authorised me to conduct this review on his behalf.
Since you have agreed to limit your request to the names of those involved as opposed to their actual signatures, this review will be concerned with whether the HSA is justified in its view that sections 23 and 28 apply to the information withheld i.e. the names on the two documents. In arriving at my decision I will take account of any submissions made by yourselves or by the HSA, and also of the provisions of the FOI . I note that although you were invited by my Office to make a submission supporting your appeal you have chosen not to do so.
The two signatures concerned are on two separate forms: a form of notification of construction site supplied by Company A and a form of notice of accident supplied in respect of Company B. During the course of my review it became clear that there is a qualitative difference between the two people who signed the respective forms in that, one signatory is a director of one of the companies, while the other is an employee. This has implications in terms of what constitutes personal information under the FOI Act.
Section 28(1) of the FOI Act provides for the protection of an individual's personal information. The FOI Act defines personal information as information about an identifiable individual that:-
(a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or
(b) is held by a public body on the understanding that it would be treated by it as confidential
and without prejudice to the generality of (a) and (b) includes
(iii) information relating to the employment or employment history of the individual.
As the remainder of the records have been released to you, what is at issue here is access to the names of those who signed the forms. I am satisfied that the name and position of an employee with a company can be said to be information relating to the employment of that individual. However, for the information to meet the definition of personal information it must meet the criteria at (a) or (b) above. The investigation in question was initiated by the HSA and the name of the employee and the employee's position was supplied to them in the context of that investigation. However, in the case of Company B, the position held by the employee is that of director of the company, a fact required by law to be placed on the public record (see decision 98022 - Mr. Tom Cronin and the Office of the Director of Consumer Affairs under "Decisions" at website www.oic.ie). On that basis, I am satisfied that the information in this case does not meet the criteria set out at (a) or (b) in the definition of personal information and is therefore not exempt under section 28(1). However, I feel it important to make the point that even if this signatory had not been a director and his signature was therefore considered to be personal information, the public interest in ensuring that such forms are signed by properly authorised persons could still have required disclosure.
The second employee does not hold a directorship in the company and there is no requirement that his position in the company be a matter of public record. However, under the Safety, Health & Welfare at Work (Construction) Regulations, 1995, the form he signed must be completed by the Project Supervisor and must be displayed publicly at the construction site. Therefore, the information relating to his employment is already known to a broader constituency than his family and friends and I am therefore satisfied that the release of his name, in the context of the form he signed, does not constitute release of personal information (as defined above), and that section 28 does not apply.
Section 23(1)(a)(ii) of the FOI Act provides that access to a record may be refused if access could reasonably be expected to prejudice or impair :-
"the enforcement of, compliance with or administration of any law,
In arriving at a decision to claim exemption under section 23, a decision maker must firstly identify the potential harm to the matters covered by the exemption that could arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur.
The HSA has overall responsibility for the administration and enforcement of health and safety at work in Ireland. It monitors compliance with legislation at the workplace and can take enforcement action, including prosecutions. It contends that information collected in the course of its investigations forms a major part of the evidence used to enforce compliance with the relevant legislation. It points out that most of the information it receives is provided voluntarily and its procedures rely heavily on parties involved in the investigation, including complainants and witnesses, believing that information given to the HSA is given in confidence. In this regard the HSA states that the information is only revealed to the extent necessary to ensure fair procedures in its investigations and for the HSA to make findings or recommendations, or to take criminal proceedings. It argues that disclosure of information supplied in confidence could result in other parties in investigations being less co-operative, thus prejudicing the enforcement, compliance with or administration of the Health & Safety Acts.
In examining the merits of the HSA's contention I do not have to be satisfied that the outcome envisaged by the HSA will definitely occur. It is sufficient for the HSA to show that it expects such an outcome and that its expectations are reasonable.
I have found that the two records in question are in different ways already matters of public record and I am satisfied that the release of this information could not be expected to cause any discomfort or anxiety. The information given in the forms in question is primarily factual: the names of the companies; the site address; the name of the injured party and the date and circumstances of the accident. As such, I do not accept that release of the signatories names would be a significant factor in prejudicing the future completion of such forms.
In addition, I do not accept that the release of this information would give rise to a general belief in automatic disclosure since each case will continue to be judged on its own merits. In this regard, I would refer to a recent case also involving the HSA where I upheld its decision to withhold the statements made by witnesses to an accident (Ref: 020238. Details available on request). I am therefore holding that section 23(1)(a)(ii) does not apply.
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the HSA and direct that access be granted to the names and positions of the two signatories in question.
A party to a review, or any other person affected by the 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 four weeks from the date of this letter.