“First, the effect claimed by HSE, as set out when disclosing the redacted COIN file to Mrs. O’Hanlon on 29.10.2021, is an adverse one; namely that if its decision-making process was made public, it could be used by unscrupulous Duty holder(s) to circumvent health and safety legislation thereby avoiding enforcement action. This recalls the tribunal’s finding in Archer at paragraph 56, that disclosure of the report would have disclosed the council’s strategy in dealing with breaches, its view of the strength and weakness of its position, with the adverse effect on the ability of the council to conduct an inquiry of a criminal nature. Secondly, in light of the extent of disclosure of COIN already made and precision of the limited redactions maintained, disclosure of the remaining withheld information would be to the extent necessary to avoid that adverse effect. Thirdly, that disclosure would, on the balance of probabilities, have the adverse effect claimed. This manifest on the face of and given the nature of the material redacted on reg 12(5)(b) grounds, namely HSE decision-making in relation to whether to proceed to prosecutions Fourthly, in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. On the disclosure side, the general interest in transparency and the particular interest in transparency on matters of public health and safety.” [51] The Second Respondent’s submissions in response to the assertion that complaints from members of the public, councilors and the MP were received between 30th January and7th February 2020 are as follows: “First, it held a concern received from a member of the public dated 30.1.2020. HSE withheld this in reliance on regs 12(5)(b) and 13. As to reg 13, Mrs. O’Hanlon has confirmed that she does not seek any content that is personal data. This remains the case other than for the inspectors. Second, it held a complaint from Lydiate Residents, including Mrs. O’Hanlon, dated 5.2.2020 HSE withheld this on grounds of regulation 12(4)(b) (manifest unreasonableness – because already held by Mrs. O’Hanlon). Third, it held email communication between Mrs. O’Hanlon and HSE between 5-17.3.2020. As the Commissioner observes, save for the first two days, 2c largely fell outside scope of the Request so need not have been identified as a document in scope of Request 2. HSE also withheld this on grounds of regulation 12(4)(b). Fourth, a complaint from Mrs. O’Hanlon via HSE’s Concerns and Advice Team (CAT), to HSE’s Chief Executive and informally, directly to the Inspectors. This is a complaint by Mrs O’Hanlon, such that reg 12(4)(b) applies. If she does not have a record of that complaint and desires one, she may request the same by way of subject access request. The Commissioner’s Guide to the EIR195 states on p 9: “The [EIR] don't provide a right of access to a person's own information. If someone makes a request for their own personal information, you should deal with it as a data protection 'subject access request”
“First, the explanatory and empirical evidence given by Jane Cloherty describes an adverse effect, in summary: prejudice to HSE ability to carry out future investigations successfully, the preference for and quality of voluntarily disclosed evidence, the risk of deterring cooperation amongst the investigated, an example of a previous significant impact caused by HSE disclosure of correspondence voluntarily disclosed to HSE, and the importance of HSE having a safe space in which operate during live investigations. Information that reveals an authority’s strategy for dealing with regulatory breaches, including assessment of the merits of its position and strength of evidence, may have the adverse effect on the protected interest: Archer, §56. Secondly, no more than is necessary has been withheld. The exception has only been relied on to the extent necessary. The nature of the adverse impact is such that it is not ameliorated through redaction and partial disclosure. Thirdly, as to whether the adverse effect ‘would’ occur, rather than mere risk, as with the Part 2 complaints, the written evidence of Mrs Cloherty is lucid, cogent and detailed, and backed up by oral evidence which the FTT is invited to find was frank and helpful to the FTT’s queries, owning limitations of her knowledge such that proper enquiries could be made to answer the FTT’s queries. Relevant to this third probability question within her evidence is the example given is the specific example given of an incident where information was disclosed in response to FOIA request and led to a cessation in voluntary supply of information by regulates.This breadth of impact on: “efficacy”: is analogous with PI reasons given by DN and HSE, in particular the “efficacy” of the whistleblowing on which HSE depends and the cooperation on which it would rather depend. This is particularly relevant in a complaint suffused with criticism of HSE’s regulatory performance, the implication of which is desire that HSE be an effective regulator. Fourthly, as to the public interest test, HSE repeats its submission on the test as made in respect to Part 1 and 2. HSE’s investigative function is as dependent on the confidentiality of the HSE-duty holder correspondence requested under Part 11 as it is dependent on the confidentiality of the complaints requested under Part 2. They respectively comprise the key stages of HSE’s regulatory operation, completed by the prosecutorial information requested under Part 1. It is impossible to see that the adverse effect on these functions as less great than the general public interest in transparency and the particular public interest in disclosure of this information to better inform Mrs O’Hanlon and the public about the action of the Duty holder and HSE’s investigation. that would result from the disclosure of this correspondence”
“copies of their reports and any other reports relating to HSE Inspectors' visits at this site” [57] Our attention was drawn to the submissions as to the COIN Report. It was notable that, despite previous statements that no more information was found by the Second Respondent within the confines of the request, in fact more information was then found during the course of the hearing day. On that basis, we can only conclude that there was more information that should have been identified and provided to the Appellant earlier and we deal with those matters and the necessary substitute Decision Notice further below. [58] The further information falling within this broad heading, and our decision in respect of them, is as follows: a. “Information about an employee’s actions or decisions in carrying out their job is still their personal data”
“O’Hanlon did not request disclosure of the unredacted copies of the internal emails. In her reply to HSE, she stated that they lacked the information she sought.” b. “Inspectors’ notebooks”
“In her reply to the Commissioner, Mrs O’Hanlon did not request the notebooks. This underlines the breadth of HSE’s search. It has ultimately interpreted her Request so broadly that Mrs O’Hanlon considers it broader than what she was requesting”. [We accept that the notebook entries can be withheld under reg 12(5)(b).] Part 2: “complaints from members of the public, councillors and the MP were received between 30th January and7th February 2020 ” [59] We accept and adopt the written submissions made on behalf of the Second Respondent in this respect: “99. First, it held a concern received from a member of the public dated 30.1.2020. HSE withheld this in reliance on regs 12(5)(b) and 13. As to reg 13, Mrs O’Hanlon has confirmed that she does not seek any content that is personal data.That remains the case other than for the inspectors. As to reg 12(5)(b): a. Disclosure would have clear adverse effect on HSE’s ability to conduct investigations into possible regulatory breach or take enforcement action if unable to provide notifiers with a confidential environment in which to report, a dissuasion risk not removed by anonymisation. The particular nature of this public interest has been explained in detail by HSE in its IR Response of 9.8.2021 and its basis further explained in the statement of Jane Cloherty at §§70-75 and 126. In her oral evidence, Mrs Cloherty said that when individuals submit a complaint, they are asked whether they wish to provide their name; 68% indicated that they do not want their name to be passed to the dutyholder in question; 8% don’t want to give name at all to HSE; there are 20,000 complaints per year; and, as to the reason for the anonymity, “without it, people would not come forward to HSE”
“The [EIR] don't provide a right of access to a person's own information. If someone makes a request for their own personal information, you should deal with it as a data protection 'subject access request”