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Parliamentary Commissioner for Administration

Second Report Session 1998-99

Volume 2 - ACCESS TO OFFICIAL INFORMATION

HEALTH AND SAFETY EXECUTIVE

Case No. A.7/99

Refusal to release information about workplace stress which was obtained by inspectors

Mr H asked HSE how many of the letters and enforcement notices which they had issued mentioned workplace stress and whether he could have copies of those documents. He also asked HSE to provide other information about their approach to workplace stress, including details of any review of their policy in this area. HSE told Mr H that they did not store information by specific hazard or risk and, to identify every document which mentioned stress, they would have to conduct manual searches of all their files. They took the view that Exemption 9 in Part II of the Code (Voluminous and vexatious requests) applied and, in any case, disclosure of much of the information contained in the documents asked for was prohibited by section 28 of the Health and Safety at Work etc Act 1974. After Mr H requested an internal review of their decision, HSE assembled some documents which mentioned stress and provided him with the front pages of several enforcement notices and some other information. They also summarised their current work on stress, and told him no formal review of stress had been carried out. The Director General of HSE told the Ombudsman that their computer system did not allow them to search for data on individual hazards such as stress, hence their reliance on Exemption 9; but they were making improvements to their computerised search facilities. Also, in their view, they had tried to reply helpfully to numerous requests for information from Mr H. The Ombudsman confirmed that HSE would have to conduct an exhaustive search of their paper records to identify how many mentioned stress; he was satisfied that Exemption 9 had been correctly applied. However, he found that HSE's computer system could be used to locate a significant number of letters which mentioned stress—and some of the information in those documents could be presented in such a way that it was not caught by the statutory restrictions on disclosure. HSE subsequently agreed to provide Mr H with some additional information on workplace stress. The Ombudsman was satisfied that HSE had not reviewed their policy on workplace stress at the time of Mr H's information request; afterwards, however, they started to review internal guidance used by inspectors. They agreed to the Ombudsman's suggestion that they should provide Mr H with a copy of the revised guidance when available. The Ombudsman partially upheld the complaint.

4.1. Mr H complained that the Health and Safety Executive (HSE) had refused to disclose information which should be made available under the Code of Practice on Access to Government Information (the Code). My investigation began in August 1998 after I had received comments from the Director General of HSE. I have not put into this report every detail investigated by my staff; but I am satisfied that no matter of significance has been overlooked.

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Statutory background

4.2. Section 11 of the Health and Safety at Work etc Act 1974 (HSWA) sets out the general functions of HSE and the Health and Safety Commission (HSC) to whom HSE report. Under section 11(1) HSC (and by extension HSE) have the general duty, in addition to their other functions, 'to do such things and make such arrangements as [they] consider appropriate for the general purposes' of Part I of HSWA. The provisions of Part I are set out in section 1(1) of that Act and include:

'(a) securing the health, safety and welfare of persons at work

'(b) protecting persons other than persons at work against risk to health or safety arising out of or in connection with the activities of persons at work.'

'to make such arrangements as [HSE] considers appropriate for securing that government departments, employers, employees, organisations representing employers and employees respectively, and other persons concerned with matters relevant to any of those purposes are provided with an information and advisory service and are kept informed of, and adequately advised on, such matters'.

4.3. The statutory powers of a health and safety inspector derive from section 20(2) of HSWA. They include powers:

'to make such examination and investigation as may in any circumstance be necessary for the purpose [of carrying into effect any of the relevant statutory provisions within the field of responsibility of the enforcing authority which appointed him]' (section 20(2)(d) and section 20(1)).

4.4. Under section 16 of HSWA, HSC may approve and issue codes of practice which in their opinion are suitable for the purpose of providing practical guidance on certain provisions relating to their statutory duties or to health and safety regulations.

4.5. Section 21 of HSWA empowers an inspector to serve an improvement notice on a person who, in the inspector's opinion, has contravened or is contravening one or more of the relevant statutory provisions on health and safety at work.

4.6. Section 28 of HSWA deals with restrictions on the disclosure of information. Sub-section (7) states that a person shall not disclose any information obtained by him as a result of the exercise of any power conferred by, inter alia, section 20 unless (among other things) disclosure is for the purposes of that person's health and safety functions, or the consent of the person furnishing the information has been given.

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HSE procedures

4.7. Following a visit to premises in accordance with the requirements of HSWA the inspector will produce, probably in letter form, a report which sets out what he has found in the course of his inspection and detailing any remedial work which he believes to be necessary. Any serious breach of HSWA will be dealt with by means of an enforcement notice, which will be served on the employer. These are broadly of two kinds. An improvement notice requires an employer to address a specific deficiency within a given time limit: a schedule to the notice sets out how the deficiency might be remedied. In very serious cases a prohibition notice will be issued. This requires the immediate closure of the piece of machinery or the premises where the fault has been identified. In cases where HSE carry out a prosecution, other documentation is used.

General background

4.8. On 25 February 1997, Mr H wrote letters addressed to HSE Area Directors (sic) asking: what action HSE's officers had taken on stress during 1996; how many of the letters and enforcement notices which HSE issued mentioned stress; and whether copies of those documents were available and, if so, at what price? He was told that the Field Operations Directorate (FOD) Headquarters would send him a co-ordinated reply.

4.9. On 2 April, however, the Director General of HSE wrote to Mr H saying that HSE did not normally store information by specific hazard or risk, such as stress. To provide him with the information he had requested, manual checks would have to be made of every notice and letter they had sent to employers in 1996: in any event, it was likely that very few notices would have been issued as a result of the identification of occupational stress. She said that to carry out such a task would be an unreasonable diversion of resources, as replying to the request would involve many thousands of hours of inspectors' time. HSE took the view, therefore, that Exemption 9 in Part II of the Code applied although the disclosure of much of the information requested was in any case prohibited by section 28 of HSWA. Some information on enforcement notices was available on public registers held in HSE offices and could be inspected free of charge.

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As to action taken by HSE on stress, the Director General said that HSE recognised the existence of occupational stress as a health and safety issue, and inspectors discussed with employers any aspects of their work activities which might give rise to it. She referred to HSE's published guidance, Stress at work—a guide for employers.

4.10. Mr H wrote back to the Director General on 22 May asking further questions about their policy on workplace stress. He wanted to know why only a small number of enforcement notices had been issued because of occupational stress, and whether HSE were committed to the production of regulations or a code of practice on the subject. He asked whether or not they would take appropriate enforcement action on workplace stress and, if they did, what it would be. The Director General replied on 11 June, saying that there were likely to be few enforcement notices on this matter because HSE concentrated on ensuring that employers had effective systems for managing health and safety; given the current knowledge in this area, it was often difficult to obtain enough sufficiently robust evidence in particular cases to justify the issue of an enforcement notice linking poor management to workplace stress. HSE were considering what further action, if any, could be taken to address work-related stress, and their current programme of research was intended to establish how they could advise employers to prevent or reduce it. A code of practice was one option under consideration.

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4.11. Mr H wrote again to the Director General on 4 July, in relation to those cases where HSE had taken action on workplace stress, asking for full details, including any relevant improvement notices and schedules. The Director General replied on 16 July saying that HSE would have to conduct a manual search of all the files held on their premises to obtain the information asked for; such an exercise would involve an unreasonable diversion of resources and, therefore, his request fell within the terms of Exemption 9 in Part II of the Code. (Exemption 9, which is headed 'Voluminous or vexatious requests', covers:

'Requests for information which are vexatious or manifestly unreasonable or are formulated in too general a manner, or which (because of the amount of information to be processed or the need to retrieve information from files not in current use) would require unreasonable diversion of resources).'

4.12. On 22 August, Mr H wrote to the Director General, challenging her use of Exemption 9 of the Code and section 28 of HWSA, and asking her to review her refusal of his information request. He also contended that, as workplace stress was such an important and wide-ranging subject, HSE must have reviewed their enforcement policy in this area: it was the details of that review—including copies of notices, letters and details of prosecutions—that he wished to see. The Director General replied on 10 October. She said that HSE's internal complaints panel had considered his information request but had concluded that the information should be withheld for the reasons which she had already given; however, she did enclose the covering pages of three enforcement notices which HSE had issued and some details about a prosecution in which stress was an issue, although she was unable to give more information due to the prohibition in section 28. She went on to say that HSE were currently reviewing and developing their approach on the issue of workplace stress, and that no formal review had yet been carried out. There were a number of current HSE initiatives for raising awareness of the issue, which she summarised. She referred also to Mr H's right to appeal to me.

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HSE's reasons for refusing access

4.13. In her comments on the complaint, the Director General said that HSE's computer system not only had 186,000 regulatory contacts recorded on it, but did not at present allow them to search for data by individual hazard such as stress, although this would change in due course. HSE considered that it would be an unreasonable diversion of resources manually to search all their paper files to retrieve the information, hence their reliance on Exemption 9. They had located a few examples of enforcement action which were relevant to Mr H's request, and provided him with copies. HSE had tried wherever possible to reply to the numerous requests for information made by Mr H; they had also invited him to visit them to discuss his concerns, but he had declined their invitation. The Director General forwarded to my Office copies of documents which had references to workplace stress which they had obtained from their files when they conducted an internal review of Mr H's information request; among them were the documents which HSE had sent to Mr H.

Investigation

4.14. As part of the investigation my staff examined the files on which information is recorded manually, as well as FOD's computerised record systems. My staff satisfied themselves that to conduct a manual search of the files in order to identify all possible references to workplace stress would require a significant use of resources. From 1983 to April 1996, FOD used a computerised database known as SHIELD. That system can be used to retrieve information associated with certain hazards or areas of HSE's activities. My staff obtained a list of hazard codes, and found no code for stress on that list. They were satisfied that this system, as with manual recording, could not realistically be used to identify individual cases in which workplace stress was an issue. From April 1996, FOD have maintained a computerised database system known as FOCUS. This system may be used to produce standard reports derived from data entered on to it by, for example, an HSE inspector. Data may be entered in certain fields by typing in recognised codes; other fields accept text. My staff examined the database and found no evidence that FOCUS recognised a set of codes for hazards such as stress, or that the system was designed to sort and retrieve data by hazard. However, FOCUS has the capability of searching for key words in text entered on to the system. I asked HSE to use that facility to search for references to workplace stress, and to locate documents which mentioned it. As a result of my intervention, HSE were able to provide me with further information. I give my view of the information discovered as a result of this exercise later in this report.

4.15. The schedules which were attached to the notices which HSE sent to Mr H set out specific remedial action to be taken by the employers on whom they were served. There were brief references to stress in those schedules. The letters to employers contained details of inspectors' findings and feedback from visits. These also made references to stress, for example the suggestion that the employers in question should obtain HSE's guidance, Stress at work—a guide for employers, and more detailed advice about how the issue of occupational stress might be approached.

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4.16. During the investigation, I asked HSE for their comments on the extent to which the provisions concerning disclosure of information in section 28 of HSWA 1974 were relevant to the letters which HSE inspectors sent to employers. HSE said in reply that such letters comprised a mixture of information about what inspectors had found during their visits and their subsequent advice on remedial measures; while it might be possible to separate that information, disclosure of the proposed remedial measures could result indirectly in the disclosure of information acquired through the use of the inspectors' statutory powers: that would contravene section 28 of HSWA. Nor was the disclosure of such information felt to be necessary for the performance of HSE's functions as defined by section 28 of the Act.

4.17. During the period covered by Mr H's information request, HSE's current enforcement policy on workplace stress was set out in operational circular OC202/2. My staff examined papers relevant to HSE's enforcement strategy, including a copy of that circular. They found no evidence that HSE had reviewed the contents of the circular, or that they had assembled examples of notices and letters which mentioned stress, on or before 10 October 1997 when the Director General wrote to Mr H. There was evidence, however, that HSE had reviewed their overall strategy in this area during the period covered by Mr H's request. One option they were considering, which the Director General referred to in her letter of 11 June 1997 to Mr H, was whether to issue an approved code of practice (ACOP) on work-related stress (paragraph 4.4); that option had been proposed by, among others, the Trades Union Congress. During the period covered by Mr H's request, HSE had raised this matter with the Occupational Health Advisory Committee (OHAC), which was set up under section 13(1) (d) of the HSWA, and on which there is trade union representation. My staff also found evidence that HSE decided in July 1998 to make some changes to their existing operational guidance on stress contained in circular OC202/2. HSE told those staff that when the revised guidance was issued it would be placed in their information centres and would be available to members of the public.

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4.18. For the sake of convenience, I set out here Exemption 15, which covers statutory restrictions. Paragraph (a) of that exemption reads:

'Information whose disclosure is prohibited by or under any law or enactment, regulation, European Community law or international agreement.'

Assessment

4.19. When Mr H wrote to FOD on 25 February 1997 (paragraph 4.8), he mentioned the year 1996 in relation to his request; but it was not fully clear whether his request was confined solely to information contained in papers issued in that year. Some of the information which HSE released to Mr H in response to his information request related to action taken by them in 1995 and 1997. For the avoidance of doubt, therefore, I have taken his request as being one for information on the topic of workplace stress contained in any notice or letter to an employer. In addition, the many documents which I examined contained information about matters other than stress. I have however confined my assessment only to those parts of the documents which cover that subject.

4.20. There are, essentially, two key questions which I need to consider in determining whether or not the information Mr H has requested should be made available to him. The first relates to the claim by HSE, in support of which they have invoked Exemption 9 of the Code, that, in order to obtain the information requested by Mr H, an unreasonable diversion of resources would be required. I am satisfied that HSE's computer systems are not programmed in such a way that they could be accessed in any straightforward way by means of a hazard code to identify the number of notices and letters they have sent to employers concerning workplace stress. I accept, on the basis of an examination of HSE records carried out by my staff, that to obtain that information FOD would have to conduct an exhaustive manual search of the paper records held in all their offices. These records are substantial. I therefore agree that, in respect of the request to provide the total number of records which mention stress, Exemption 9 has been correctly applied.

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4.21. That does not, however, end the matter. HSE provided some information to Mr H. That information, which included improvement notices and details of a prosecution, was put together on an anecdotal basis: no attempt was made to interrogate FOCUS, the current database system. My investigation found that FOCUS could be used, by means of a word search facility, to identify a small but significant number of cases which involved workplace stress and, subsequently, to locate the corresponding documents held on the relevant files. It is a pity that HSE did not consider the possibility of using FOCUS in this way in order to deal with Mr H's request, and the Director-General has apologised for this oversight. I welcome, however, the Director General's comment that work is in hand to enhance the capacity of FOCUS to allow searches by hazard code so that, in future, the system can be used more flexibly.

4.22. During my investigation I obtained from HSE, as a result of the computer searches described earlier, the following documents relating to workplace stress: four notices plus schedules; 29 letters to employers; 20 letters to other parties: 10 inspection reports (either whole or extracts); one miscellaneous document; and details of a prosecution. Of these documents, the first pages of three of the notices and some details of the prosecution formed the information which had been already sent to Mr H. My second task is therefore to determine how much, if any, of the remainder of that information should be made available to Mr H under the Code. HSE's view is that section 28 of HSWA prevents them from disclosing information which was obtained as a result of the exercise of the powers set out in section 20 of HSWA, unless disclosure can be justified on the grounds that its release will serve a health and safety purpose (paragraph 4.6). This means, therefore, that when an inspector writes to an employer after visiting their premises and sets out in that letter what he has found during the visit, that information is subject to the restrictions on disclosure in section 28 of HSWA, falling also within the scope of Exemption 15 in Part II of the Code (paragraph 4.18). I have considered this matter very carefully and see no reason to dissent from that interpretation, although I think it would have been helpful if HSE had also quoted Exemption 15 in support of their case.

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4.23. I have taken the view, however, that some of this information can be presented in a way which does not bring it under the restrictions on disclosure set out in section 28 of HSWA. That information consists of general advice about stress contained in 16 letters to employers and in the three schedules attached to the notices which HSE sent to Mr H. I therefore suggested to the Director General that she should write to Mr H with the dates of those 16 letters and a summary of the advice, unattributed to particular cases, contained in those letters and the schedules. She agreed to my suggestion.

4.24. I found no evidence to suggest that HSE had reviewed the circular covering their enforcement policy at the time Mr H made his request, but I invited the Director General to provide Mr H with a copy of the revised operational guidance on stress (paragraph 4.17) as soon as it became available. She said HSE would do so when the guidance is ready.

4.25. Lastly, the Director General offered me some additional comments which she hoped would clarify what information HSE could make available should an individual ask for details of enforcement action in a particular area. She said:

'Mr [H] asked for numbers and copies of all enforcement action we had taken on occupational stress. I think it would be helpful... to make it clear that the use of the key word search facility in FOCUS enables us only to find some examples of such action; it does not allow all cases to be identified and it can throw up a lot of redundant information and unrelated cases eg in this instance, heat/metal stress. The second point is that where we used this facility to help us identify relevant cases we would probably have to charge for the work involved because of the time involved.'

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4.26. I found that HSE would have to conduct an exhaustive search of their paper records to provide the total number of records which mention stress and, therefore, that Exemption 9 was correctly applied to that part of Mr H's information request. My investigation revealed, however, that it was possible to locate a number of records which mention workplace stress through the FOCUS key word search facility; HSE agreed to provide Mr H with a summary of that information. I see that as a suitable outcome to a partially justified complaint.

Total screening and investigation time = 16 weeks

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