Parliamentary and Health Service Ombudsman / Improving Services / Selected Cases / Investigations Completed November 1999 to March 2000 Volume 1 PCA - 4th REPORT - SESSION 1999-2000 MINISTRY OF DEFENCE Case No. A.8/00

Mr L raised concerns about the working practices on board a vessel engaged in buoy recovery operations. MCA conducted a survey and were satisfied that the operations were safe. Mr L asked for a copy of the surveyor's report and complained to the Ombudsman when MCA refused to release it. In response to Mr L's initial requests for the report, MCA said that surveyors' reports were internal documents and were not intended for public circulation. It was not until the Ombudsman asked for comments on the complaint that MCA cited the Code and gave Exemption 14 as justification for withholding the information. The Ombudsman, however, held that Exemption 14 did not apply in this case. He also considered whether the information could be withheld under other exemptions, such as Exemption 2 and Exemption 7, but held that it could not. He concluded, therefore, that there was no reason why the information contained within the surveyor's report should not be disclosed. In reply MCA agreed to make a copy of the report available to Mr L. The Ombudsman also found that MCA's handling of the complaint was inadequate and inappropriate and he was critical of some of the advice Mr L was given. In light of the Ombudsman's recommendations, MCA said that steps had been taken and that they were fully committed to dealing with all requests for information by reference to the Code. The Ombudsman found the complaint to be fully justified.

3.1 Mr L complained that the Maritime and Coastguard Agency (MCA) had refused to supply him with information which he believed he was entitled to under the Code of Practice on Access to Government Information (the Code). My investigation began in August 1999 after I had received comments on behalf of the Permanent Secretary of the Department of the Environment, Transport and the Regions (DETR), following the Member's referral of the complaint to the Parliamentary Ombudsman.

Statutory background

3.2 The statutory powers of an inspector engaged in the survey of a ship are derived from Part X of the Merchant Shipping Act 1995 Section 258 of the Act (headed ' Powers to inspect ships and their equipment, etc ...') reads:

"...For the purpose of seeing that the provisions of this Act other than Chapter II of Part VI and of regulations and rules made under this Act (other than that Chapter) or that the terms of any approval, licence, consent, direction or exemption given by virtue of such regulations are duly complied with, the following persons, namely-
a) a surveyor of ships,
b) a superintendent,
c) any person appointed by the Secretary of State, either generally or in a particular case, to exercise powers under this section,

may at all reasonable times go on board a ship and inspect the ship and its equipment or any part thereof, any articles on board and any document carried in the ship in pursuance of this Act other than Chapter II of Part VI or in pursuance of regulations or rules under this Act (other than that Chapter)".

General background

3.3 MCA was established on 1 April 1998 as an executive agency of DETR. It was created by the merger of the Coastguard Agency and the Marine Safety Agency and is currently responsible for carrying out what were formerly the functions of both those organisations. Amongst its responsibilities, MCA is responsible for developing, promoting and enforcing high standards of marine safety and minimising loss of life amongst seafarers and coastal users.

3.4 Mr L was employed by a harbour company and was engaged in buoy recovery operations on board a vessel known as 'Vessel X'. Mr L raised concerns with his employer regarding the working practices employed during buoy recovery operations. Following a complaint by Mr L to his employer and also to the Health and Safety Executive (HSE), HSE referred the matter to MCA who conducted a survey. MCA was satisfied that the buoy recovery operations were being conducted safely. An outline of the MCA surveyor's findings was sent to Mr L. Around the time the surveyor's report was produced, Mr L was dismissed by his employer.

3.5 Mr L remained dissatisfied with the way in which his complaint against his employer had been handled and in August 1998 asked for copies of what he understood to be the two reports the surveyor had made, plus any signed declarations obtained during the course of his surveys. In addition, Mr L asked for a complaint he was making about MCA's handling of the matter to be referred to MCA's Independent Complaints Adjudicator. She concluded that there was no evidence of maladministration on the part of MCA. A copy of her report was sent to Mr L in December 1998. It did not purport to make judgements on his employer's buoy recovery operations.

3.6 In response to a further letter from Mr L dated 18 January 1999, the Corporate Services Director of MCA wrote back to Mr L on 20 January, saying that his complaint had been thoroughly investigated by the Independent Complaints Adjudicator. He also said that MCA was not prepared to release any of the documents which Mr L had requested.

3.7 On 6 February, Mr L wrote to the Secretary of State, summarising his grievances with MCA and his employer, and again requesting copies of the surveyor's reports. The Corporate Services Director responded on 2 March and confirmed that MCA was not prepared to release any documents to Mr L.

3.8 On 19 February Mr L wrote to the Member saying that he had written to his employer, identifying certain dangerous working practices, and that he had been dismissed following the production of a surveyor's report by MCA. Mr L asked the Member if he would make representations on his behalf. Mr L wrote again to the Member on 5 March, expressing his concerns about the working practices at his place of work. He reiterated his reservations about the findings of the survey conducted by MCA and asked the Member for his assistance in obtaining a copy of the surveyor's report.

3.9 The Member wrote to the Corporate Services Director of MCA on 10 March and questioned why MCA was unable to provide Mr L with a copy of the surveyor's report. The Corporate Services Director replied to the Member on 26 March. He said that Mr L had been advised on a number of occasions that surveyors' reports were internal documents and were not intended for public circulation. He said that it had never been Departmental policy to release such reports and said there would be concerns about the commercial implications should such reports be released. He also expressed concern that releasing such reports might undermine the work of surveyors, adding that such a practice would have implications beyond Mr L's case and would create a precedent. Finally, he acknowledged that Mr L had been dissatisfied with the way in which MCA had handled his original complaint against his employer, but pointed out that that matter had been referred to the Agency's Independent Complaints Adjudicator who in turn had found no evidence of maladministration on the part of MCA.

Departmental comments

3.10 The Assistant Private Secretary to the Permanent Secretary responded on his behalf enclosing a statement from MCA covering the background to the complaint. MCA said that a surveyor had investigated the safety of the buoy recovery operations on 'Vessel X'. The surveyor had also held discussions with the company's operational managers and had witnessed a recovery operation before concluding that the recovery operations were being carried out safely. MCA also said that no maladministration had been found regarding the Agency's handling of Mr L's complaint against his employer.

3.11 Turning specifically to the request for a copy of the surveyor's report, MCA said in their statement;

"The current policy on the release of inspection reports is based on legal advice on the principle that the department owes a "duty of confidentiality". This requires that information obtained under statutory powers should not be disclosed without the consent of the provider, if that information is not generally available and is potentially damaging to him, unless there is good reason for disclosure in the public interest. Since MCA is satisfied as to the outcome of the investigations of the complaint concerning safety, it was considered that the duty of confidentiality remained. This is covered under Exemption 14 of the Code of Practice on Access to Government Information".

Exemption 14

3.12 Exemption 14 of the Code is headed 'Information given in confidence'.

Exemption 14(a) covers:

Information held in consequence of having been supplied in confidence by a person who:
gave the information under a statutory guarantee that its confidentiality would be protected; or
was not under any legal obligation, whether actual or implied, to supply it, and has not consented to its disclosure.

Exemption 14(b) covers:

Information whose disclosure without the consent of the supplier would prejudice the future supply of such information.

Exemption 14(c) covers the disclosure of medical information and is clearly not applicable in this case.

Investigation

3.13 During the investigation, the Ombudsman's staff obtained copies of the relevant papers. They were in some doubt originally as to how many surveys had been undertaken and which documents made up the two surveyor's reports sought. Enquiries established that the first 'survey report' had been a letter the surveyor had sent to Mr L dated 27 March 1998. This letter concluded;

"...I have come to the conclusion that the equipment on ['Vessel X'] and its method of use is a recognised and safe method of carrying out the function of buoy recovery."

Clearly, since Mr L had already received that letter, albeit not then appreciating that it was what later came to be known as the first survey report, the issue of its disclosure no longer arises.

3.14 The second 'survey report' consisted of (i) a covering letter, dated 14 May 1998, from the surveyor to MCA, entitled ' [Mr L] - Buoy Recovery from ['Vessel X'] Floating Crane ' (ii) a single page, 10 point descriptive summary of a buoy recovery operation on 'Vessel X', and (iii) two attached drawings and 16 photographs. The second report offered no opinion of the suitability or otherwise of the buoy recovery method employed and essentially contained only factual information.

Assessment

3.15 My comments are concerned only with the refusal to release the information contained in the surveyor's second report. I offer no comments as to the accuracy or otherwise of the information it contained. The Code gives an entitlement only to information, not to documents (although the Ombudsman's experience has shown that, on occasion, the simplest way in which to meet a request for information is to release the actual document concerned), and it is on that basis that Mr L's complaint has been examined.

3.16 Before considering whether or not Mr L was entitled, under the Code, to the information he requested, I will summarise the attempts made by Mr L to obtain the surveyor's report. Mr L made his first information request in a letter to MCA dated 19 May 1998. In their response of 9 June 1998, MCA said:

"...Surveyors' reports are internal documents and not intended for public circulation...".

Mr L made a further request on 13 July. MCA acknowledged receipt of this letter but, in the light of other comments which had been made earlier by Mr L in correspondence (and which MCA considered might be libellous), MCA did not address his request directly. Mr L repeated his request for access to the report on 5 August, and for the reasons stated earlier, MCA did not answer his request.

3.17 In the meantime, his complaint against MCA had been referred to the Independent Complaints Adjudicator who reported her findings on 31 December 1998. On 18 January 1999, Mr L again wrote to MCA and repeated his request for access to all the documentation related to the 'Vessel X' survey. MCA replied on 20 January, repeating the findings of the Independent Complaints Adjudicator, and reiterating their position not to release any documents. Mr L then wrote to the Deputy Prime Minister on 6 February. MCA responded on behalf of the Deputy Prime Minister, maintaining their stance. The matter was then referred to the Member. On 26 March, in their letter to the Member (paragraph 3.9), MCA gave the following reasons for not releasing the surveyor's report:

"...surveyors' reports are internal documents and not intended for public circulation. It has never been Departmental policy to release surveyor's reports to the public and I advise that the release of these reports could have commercial implications upon ship owners and others...".

MCA also said;

"...If a surveyor had in the back of his mind that his internal report might be laid open to the public scrutiny he would feel much more constrained in what he said to an extent that it might undermine his job of reporting the situation as he sees it without fear or favour...".

3.18 It is appropriate at this stage to highlight failings in MCA's handling of the information request. The Ombudsman has said that it is good practice, if departments refuse requests for information, for them to identify in their responses the specific exemptions in Part II of the Code on which they are relying. Also, in his review of the first eight months of the Code's operation, the Ombudsman's predecessor said that where information has been refused, the possibility of a review under the Code needs to be made known to the person who requests the information at the time of that refusal, as does the possibility of making a complaint to the Ombudsman if, after the review process, the requester is still dissatisfied. In the light of this, I find that the Department's handling of the request was inadequate and inappropriate.

3.19 In making this point, I have in mind a number of aspects: (i) in their responses to both the Member and to Mr L, MCA failed to make any reference to the Code; (ii) at no stage during any correspondence with MCA was Mr L or the Member informed of the opportunity to have the information request reviewed under the Code; (iii) when the request was reviewed following the intervention of the Member, the same person (the Corporate Services Director) reviewed his own earlier decision not to release the second report. I am critical of that process.

3.20 I note too there were unsupported claims in the responses given by MCA. It was said in the Agency's response to the Member:

"...it has never been Departmental policy to release surveyors' reports to the public and I advise that the release of these reports could have commercial implications upon ship owners and others...".

MCA did not offer reasons for that view or refer to the Code in their explanation to the Member. In the same response to the Member, MCA said:

"...The possibility of releasing a surveyor's report to a member of the public is an important policy decision which has implications beyond the immediate case of Mr L and one which would create a precedent...".

I am critical of MCA for this approach. Under the Code, there is a presumption in favour of releasing information, unless the harm likely to arise from its disclosure would outweigh the public interest in making the information available. The Code also makes it clear that all requests for information should be treated on a case by case basis. MCA should have considered the harm liable to be caused by the release of the information contained within the report concerned and then cited the appropriate Code exemption if making a decision to refuse release, rather than relying on a blanket refusal to release all information contained within every surveyor's report.

3.21 In response to my request for comments, MCA did cite Exemption 14 of the Code, which is set out in paragraph 3.12 above. I accept that Exemption 14 might be appropriate in some cases. However, having read the report, the question of information being provided in confidence does not arise. The report itself contains entirely factual information and is simply the record of a buoy recovery operation as recorded by the surveyor. No reference is made in the report to any consultation with members of the harbour company staff or the 'Vessel X' crew, nor is any reference made to their personal or professional opinions. There is no suggestion that any information has been supplied to the surveyor by a third party who would wish their contribution to be treated confidentially. In this particular example, the 'provider' of the information is the surveyor, who is employed by MCA. In this context therefore, I do not consider that the issue of confidentiality arises. I also note that the first survey contains far more advice and opinion than the second survey and that the first survey, unlike the second, was disclosed to Mr L. Finally, neither MCA nor the Department have made any claim that any of the information contained in the report is protected from disclosure under a statutory enactment.

3.22 I then considered whether the information could be withheld under other exemptions in the Code. Exemption 2 is concerned with 'Internal discussion and advice', the relevant part reading:

"Information whose disclosure would harm the frankness and candour of internal discussion, including ...internal opinion, advice, recommendation, consultation and deliberation".

However, the report is an entirely factual account of the buoy recovery operation, and does not contain any element of discussion or advice. Exemption 2 is intended to protect advice, not factual information.

3.23 Exemption 7 is headed 'Effective management and operations of the public service'. Exemption 7(b) reads:

"Information whose disclosure would harm the proper and efficient conduct of the operations of a department or other public body or authority, including NHS organisations, or of any regulatory body."

This exemption is intended to prevent the disclosure of information where disclosure would be damaging to the work of the department concerned. I find it difficult to accept that a surveyor would experience difficulties conducting surveys in the future should this particular report be disclosed, particularly as the role of the surveyor is one given by statutory power and the information concerned has not been provided voluntarily by a third party.

3.24 I therefore conclude that none of these other Exemptions would apply in this case either, and I see no reason why the information contained within the second report should not be disclosed, the simplest way being to release the actual document to Mr L. I so recommend. In reply, the Chief Executive of MCA said that he would make arrangements for Mr L to receive a copy of the second report, including copies of the drawings and photographs referred to.

3.25 I am also critical of some of the advice Mr L was given. On 16 June 1998, Mr L wrote to MCA and asked them to advise him under which Merchant Shipping Act the surveys on 'Vessel X' had been conducted. On 23 June MCA responded and said:

"...The Agency's surveys concerning this matter have been carried out under the general functions of the Secretary of State set out at Section 292 of the Merchant Shipping Act 1995...".

Section 292 of the Merchant Shipping Act 1995 reads as follows:

"(1) The Secretary of State shall continue to have the general superintendence of all matters relating to merchant shipping and seamen and is authorised to carry into execution the provisions of this Act and of all Acts relating to merchant shipping and seamen for the time being in force, except where otherwise provided or so far as relating to revenue.
(2) The Secretary of State may take any legal proceedings under this Act in the name of any of his officers."

During the course of my investigation, the Ombudsman's staff asked DETR to establish under which powers MCA had conducted the survey. In reply, DETR said;

"...The Maritime and Coastguard Agency have informed me that (the surveyor) inspected the vessel under Section 258 of the Merchant Shipping Act 1995 entitled 'Powers to inspect ships and their equipment, etc...".

(I have already set out the terms of the relevant part of this section (see paragraph 3.2).)

3.26 Finally, I suggested to the Chief Executive that steps should be taken within MCA to ensure that there was a commitment to dealing with all requests for information by reference to the Code. In reply, he said that steps had already been taken in the light of my recommendations, and that the MCA Executive Board and senior managers were fully committed to dealing with all requests for information by reference to the Code and would promulgate this to other staff. I also drew his attention to the fact that the MCA statement of response to my Office was not appropriately attributed to a named individual and he expressed regret that the normal procedure for attributing statements of response had not been followed on this occasion.

Conclusion

3.27 The MCA agreed to make available to Mr L a copy of the second report including copies of the drawings and photographs referred to. I regard this as a satisfactory outcome to a justified complaint.

Total screening and investigation time = 21 weeks

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Last updated: 4 April 2005