Health and Safety exemption is a blow to your basic right to know

IT IS said that legislation is like the butcher’s sausage - it can be unpleasant to watch how it is made. This week we saw an interesting example of how bad our law-making process can be sometimes.

Last autumn someone rang the office of Information Commissioner Emily O’Reilly and asked staff there why investigations by the Health and Safety Authority (HSA) were no longer covered by the Freedom of Information Act.

The enquirer was met with by a stone-faced response - the information commissioner’s office was unaware that this change had happened.

The Department of Finance has overall responsibility for Freedom of Information (FoI) and for the designation of the bodies to be covered by it. However, when Emily O’Reilly wrote to Finance asking what had happened to the HSA, and why her office hadn’t been told about it, she got what Fianna Fáil deputy Sean Fleming has since categorised as a ‘smart alec’ response. According to Fleming, they effectively told her it was up to her to find out what was going on and it was not up to them to tell her.

The information commissioner’s office can be forgiven for having missed this change. In fact, looking back on it now it seems this legal change was done quite slyly - it would have taken a particularly assiduous parliamentarian to spot it.

The first Freedom of Information Act was passed into law in April 1997. It brought all government departments and some other bodies under its ambit, but left the power to extend FoI to other public bodies to ministerial regulation. Over the last few years FoI has gradually been extended to local authorities, health boards and even semi-State bodies like RTÉ. Interestingly however, about 50 public bodies have not yet come under the ambit of the Act.

However, the Health and Safety Authority was actually included within the remit of FoI relatively quickly. It was done by means of a ministerial regulation made early in 2001.

For the following four years all of the Health and Safety Authority’s documents - those dealing with its administration and those generated by its investigations into workplace accidents - were available publicly subject only to the usual fees and the usual restrictions, such as the protection of personal data. So, for example, in a situation where a factory worker was unfortunate enough to lose a hand while working on a machine, the HSA investigation file was available under FoI. When any such workplace injury occurs, the HSA must by law be notified and its inspectors have strong powers to investigate the incident.

They can examine the scene, take statements from witnesses or management and even require the production of machine records or works documents. If the HSA finds that an offence under its relevant legislation may have occurred, it can initiate a criminal prosecution.

One real value of the FoI Act was that if the injured worker wanted later to seek compensation and to establish whether the employer was negligent, or even just wanted to find out what happened, he or she could seek a copy of the HSA investigator’s file under FoI.

In the same way, anyone else interested in the safety practices or lack of them in a workplace, like a trade union or even the media, could get details of the HSA investigation, provided they met the requirements of the act.

However, it seems that sometime between early 2001 and early 2004 the Health and Safety Authority took a view that its investigations should no longer be open to the public in this way, and when new health and safety legislation was being drafted in 2004, it prevailed on the Department of Enterprise and Employment to put a tidy little section into the new act to achieve just that.

In seeking this change the HSA appears to have been motivated by a view that its investigations should be on a par with other authorities like the gardaí who enjoy this blanket exemption.

However, the effect of this amendment was to move the bulk of the HSA’s work outside the scope of Freedom of Information.

This blanket exemption is an unnecessary and backward step. No such blanket exemptions apply for Department of Agriculture or Social Welfare investigations, all of which could also give rise to criminal charges. There is no reason why, once criminal proceedings are over or after it is decided not to initiate them, HSA investigations should not be generally available.

WORKERS now seeking information about their accidents do not have access to it as of right. In the context of litigation, they can seek it through the complex and at times costly legal process of third party discovery, but they can’t do it as quickly or as cheaply as they could previously have done under FoI. The HSA is the only organisation to come within FoI which has subsequently had its exposure to the light of public accountability reduced in this way.

The change is provided for in Section 74 of the Health and Safety and Welfare at Work Act, 2005. This is a positive and significant piece of legislation which updated and dramatically enhanced worker protection and the enforcement of workplace safety. It runs to 95 pages and has 89 detailed sections. Inevitably this significant change to the freedom of information system was lost within this lengthy and complex legislation.

Every bill is accompanied by an ‘Explanatory Memorandum’ - a document designed to summarise the act’s provisions in plain speak, section by section. The explanatory memorandum for this bill was not very explanatory on Section 74 which, it says, “amends the Freedom of Information Act, 1997 by inserting references to records arising from the enforcement functions of the authority in section 46(1) of that act”.

That explains very little to even the experienced parliamentarian and certainly does not tell them that Section 74 exempts investigation documents currently available under FoI.

In fact, the FoI change was so well buried within the 2005 legislation that Section 74 was not even discussed in the entire debate in the Dáil and Seanad.

At the committee stage, legislation is supposed to be considered line-by-line and that is where one might have expected Section 74 to come under the spotlight. For this legislation the Dáil committee stage was in November 2004 and the Seanad committee stage was in May 2005 but, in both instances, Section 74 was simply agreed and passed over.

The sad reality is that what happened to this section is not unique. There are many varied reasons for this. Both Houses of the Oireachtas sit for too few days of the year. Too much political and media attention is focused on political trivia rather than on the details of the legislative process.

Detailed criticism of legislation from Government backbenchers is not encouraged and is resented in fact by most ministers. Too much law is made on the hoof in reaction to transient controversies.

Overstretched opposition spokespersons are too often swamped with last-minute Government amendments. Our politicians are under-resourced without specialist skills or support staff for their legislative work. The cumulative effect is that too many sections of legislation get little or no attention as they go through the Oireachtas. It can all make for some bad law.