Case number: OIC-138422-B7G8S1
15 November 2023
By way of general background, Health and Safety legislation requires employers to report certain workplace accidents to the HSA. The HSA’s website includes guidance on these requirements, including examples of accidents which must be reported and those that are not reportable.
On 3 January 2023, the applicant made an FOI request to the HSA for records relating to an accident that he suffered at his workplace, which he said his employer should have reported. He attached the HSA’s letter to him, also dated 3 January 2023, confirming that it had followed the matter up with the employer and saying that those contacts must remain confidential.
The HSA’s decision of 19 April 2023 part-granted the request. It relied on sections 35(1)(a) (information in confidence), 37(1) (personal information) and 42(m) (identity of informant) in relation to the withheld details.
The applicant sought an internal review on 22 April 2023. The HSA’s internal review decision of 17 May 2023 granted access to some further information. It refused access to the remainder under sections 15(1)(i) (records already released) and 30(1)(a) (prejudice to FOI body’s inquiries or procedures), in addition to sections 35(1)(a) and 37(1) of the FOI Act.
On 18 May 2023, the applicant applied to this Office for a review of the HSA’s decision. During the review, the HSA released some further brief excerpts of the records.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, the HSA and the applicant, the contents of the records at issue, and the provisions of the FOI Act.
The scope of this review is confined to whether the HSA’s decision was justified under the FOI Act. It does not extend to any other matter, and cannot consider or make any findings on either the HSA’s performance of its functions or the actions of any party.
The applicant knows that the HSA is willing to provide him, outside of the FOI Act, with copies of the records that it refused under section 15(1)(i). He is also aware of the HSA’s explanation that its schedule of records appears to contain discrepancies because of multiple duplicates amongst the records. I told him that I intended to exclude these records from my review in the circumstances. He did not comment on this and I am proceeding accordingly.
Section 25(3) of the FOI Act requires me to take all reasonable precautions in the performance of my functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the withheld information and of the reasons for my decision are somewhat limited in this case.
The release of records under FOI is, in effect, regarded as release to the world at large given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.
I have examined the records carefully. The released elements show that, further to the applicant’s initial enquiries, the HSA told him that it had searched its database for an incident report form but had found no record of it. They show that the applicant subsequently asked the HSA to investigate the matter. They also show some aspects of the HSA’s ensuing contacts with the employer and a summary reason for the HSA’s ultimate closure of the case.
As explained earlier, I am unable to describe the withheld details to any extent. I can say, however, that they consist of contacts between the HSA’s Contact Centre staff and the relevant employer, and that they detail the applicant’s allegations and the employer’s responses. I note also that the HSA has not disclosed any details that would identify the employer.
Section 30(1)(a) – prejudice to investigation procedures
Section 30(1)(a) of the FOI Act provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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 the conduct thereof. A record that is exempt under section 30(1) may still fall to be released further to the public interest test set out in section 30(2).
Section 30(1)(a) – arguments made
The HSA says that disclosure of the remaining details could reasonably be expected to prejudice the procedures or methods it employs for the investigation of complaints such as the applicant’s for the purposes of section 30(1)(a) of the FOI Act.
The HSA says that the applicant’s case was dealt with by its Contact Centre, who are administrative staff that do not have the statutory powers of inspectors. It says that the Contact Centre processes approximately 3,000 complaints annually, with only a small proportion of these being referred onwards to inspectors.
The HSA says that when employers are responding to the Contact Centre about complaint allegations, they do so voluntarily, on the understanding and expectation that the HSA will treat the details concerned as confidential. It says that any reduction in this type of voluntary disclosure and communication could greatly impair the effectiveness of the HSA’s complaint investigation process.
The HSA says that disclosure of such details at issue to the world at large would impact on employers’ willingness to cooperate with the Contact Centre’s enquiries. It says that such reduced cooperation would mean having to refer more complaints to the HSA’s limited pool of inspectors, who would then have less capacity to carry out other types of investigative work, and that this would overall be a less effective way of examining complaints.
The applicant outlines why he believes the employer should have submitted a report to the HSA. He says that while he has received details of his own contacts with the HSA, he has not been given any details of its investigation into the matter. He says that disclosure of the remaining records can have a positive impact on employers and employees and the public generally because it will educate them and in turn reduce the overall number of workplace accidents. I have taken this comment as an argument either that disclosure will not affect the effectiveness of the HSA’s procedures or that disclosure, while affecting that effectiveness, will nonetheless result in better compliance with legislative requirements.
At the outset, it is important to note that this Office has no role in considering the appropriateness or efficiency of the HSA’s procedures for investigating complaints like the applicant’s. Rather, I am confined to considering whether disclosure of the particular details at issue could reasonably be expected to prejudice those procedures, etc.
Generally speaking, I can accept that if employers (or other third parties with which the HSA engages in the course of inquiries and/or investigations) were to refuse to voluntarily give necessary information, that this could reasonably be expected to prejudice the effectiveness of the processes employed by the HSA for the conduct of those inquiries and/or investigations. It is not necessarily the case that all documentation or information provided to the HSA during the course of investigations could cause such harm, regardless of the nature of the documentation. However, in the circumstances of this case, I consider that the details at issue (including the identity of the employer) are of sufficient sensitivity such that I can accept that their disclosure to the world at large could reasonably be expected to prejudice the voluntary supply of information to the HSA. In turn, I accept that this could reasonably be expected to prejudice the effectiveness of the processes employed by the HSA for the conduct of its inquiries and/or investigations. I find that all of the withheld details are exempt under section 30(1)(a) of the FOI Act.
However, this is not the end of the matter. I will now go on to consider the public interest test set out in section 30(2) of the FOI Act.
Section 30(2) of the FOI Act provides that section 30(1)(a) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. That provision recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, when considering where the balance of the public interest lies, I have had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors  IESC 57 (the Enet Case). In its judgment, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.
Although the Court’s comments were made in a case involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
The HSA says that there is a public interest in ensuring that it is performing its statutory functions (investigations, enforcement, preventative functions, promotion of health and safety in the workplace), and to this end it publishes details of prosecutions, certain material relating to work carried out by inspectors, and factual documents submitted by employers such as Safety Statements. It says that there is a strong public interest in ensuring that it can effectively and efficiently perform those functions, and also in upholding the right to due process for employers against whom allegations of wrongdoing have been made.
As noted earlier, the applicant says that disclosure of the records is in the public interest because it will ultimately result in better compliance with legislative requirements. He makes a further argument in relation to another potentially applicable exemption, which I will also take into account. In essence, he says that the public interest in preventing any impacts arising from the grant of his request is of less weight than the public interest in ensuring that persons are not seriously hurt or killed in workplace accidents. In summary, the applicant’s position essentially is that it is in the public interest for employers to comply with statutory requirements, for the HSA to foster better compliance with legislative requirements and for the HSA to provide details to employers, employees and the general public about the performance of its functions.
I must reiterate that it is not this Office’s role to assess the actions of the applicant’s employer. Furthermore, as a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. In addition, I must again stress that it is not this Office’s role to assess the HSA’s actions in examining the applicant’s complaint or the performance of its functions generally.
There is considerable weight in this case in favour of disclosing information that will enable an assessment of the HSA’s examination of the details put to it by both the applicant and the employer, and of the decision the HSA made to close the case file accordingly. However, this weight has been reduced by the details already released, which, as noted above, give some insight into the HSA’s contacts with the employer. Furthermore, it is of particular note that one (albeit brief) released excerpt gives a concise explanation of why the HSA decided to close the file on the applicant’s complaint.
On the other hand, there is significant weight to the public interest in ensuring that the procedures or methods employed by the HSA for the conduct of its inquiries and examinations are not prejudiced. I am satisfied that any prejudice to the voluntary supply of information to the HSA would have a significant impact on the body’s ability to effectively perform its functions. It follows that there is significant weight to the public interest in withholding the remaining details and in preventing such an outcome.
It seems to me that the material released by the HSA seeks to balance these competing interests. The released material provides the applicant with certain details about the HSA’s examination and closure of his complaint in a way that mitigates the risks of releasing further, more detailed, information that could give rise to the harms identified in section 30(1)(a). Furthermore, as already set out above, I must regard the disclosure of the requested information as being effectively, or at least potentially, release to the world at large.
In the circumstances, I do not accept that the public interest in releasing the remaining details outweighs, on balance, the public interest in withholding them. I find, therefore, that section 30(2) does not apply.
In light of this finding, I do not need to consider the other exemptions relied on by the HSA.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSA’s decision. I find that the withheld details are exempt under section 30(1)(a) of the FOI Act.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.