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Appendix 2:  Health and Safety at Work Act 1974: Section 28

Introduction

There are a number of ways in which HSE inspectors can disclose information obtained in the exercise of their powers under the Health and Safety at Work etc. Act 1974 (HSWA).

Basically, subject to s28(2) HSWA, an inspector can disclose any material providing he/she has obtained the consent of the person who supplied it and the consent of everyone whose personal data is contained in that material. In many instances, particularly in the context of sharing information for regulatory purposes, this scenario will be unlikely.

More generally, Section 28(3) HSWA allows an inspector to disclose “relevant information” as defined in ss(1) to (amongst others), a government department, any enforcing authority, local authority officers and constables who are authorised to receive it, without the consent of the person who supplied it, subject to the following conditions:

If the material concerns the commission (or alleged commission) of a criminal offence by an identifiable person, under the DPA it must be anonymised unless disclosure of that sensitive personal data "is necessary for the administration of justice ... [or] ... the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings)".

Sensitive personal information is defined in Section 2 of the DPA and includes data consisting of information as to a subject's commission or alleged commission of an offence or any proceedings for any offence committed or alleged to have been committed by him (which is relevant here).

In these circumstances, you will need to consider the following factors:

However, processing must also comply with one of the conditions in Schedule 2, which states, inter alia, that personal data may be processed where it is necessary for the administration of justice. 

Section 28(7) deals with information obtained by HSE using its powers under Sections 14(4)(a) or 20.

Thus if HSE wants to share information with other enforcing authorities, government departments or the police, it may do so, provided that where personal data is concerned, it is necessary for the administration of justice. Where for example, HSE is concerned that illegal activities may be underway at certain premises and wants to discuss such activities and possibly propose joint inspection activities with the other departments/regulators, this, in Legal Adviser’s Office’s view, would be processing necessary for the administration of justice.

HSE would not need to have evidence of such activities; but simply to suspect such activities are ongoing and to use discussion and any inspection with the other departments/regulators as part of a requisite investigation. Conversely, if the discussion/inspection were essentially a "fishing" exercise and HSE had no real grounds for suspecting criminal activity, it would be difficult to argue that disclosure to the other departments/regulators would be necessary for the administration of justice. In these circumstances whilst it would be possible to talk to them in general terms about tactics, what evidence you should be looking for, etc. it would not be appropriate to disclose personal information, such as names.

In circumstances where HSE is considering an inspection/investigation of a dutyholder’s premises or a "blitz" on a number of dutyholders, it would suggest it has reason to suspect illegal activities in which case discussion with other departments/regulators in advance (including revealing personal data) may be for the administration of justice. Any disclosure must be consistent with any HSE investigation; and not prejudicial to it.

In summary, provided either HSE or the other departments/regulators are carrying out an investigation (including an investigation at preliminary stages), into potential illegal activities, it will be possible to disclose/share personal information (including sensitive personal information) as it will be necessary for the administration of justice and/or for the purposes of, or in connection with, any legal proceedings.

Statutory gateways to disclosure

The purpose for which disclosure may be made under HSWA, where it is proportionate to do so, have been further widened/defined by statute, specifically, Section 17 of the Anti-terrorism, Crime and Security Act 2001 and Section 19 of the Gangmasters (Licensing) Act 2004.

(a) Anti-terrorism, Crime and Security Act 2001

Section 17 and Schedule 4 of the Act permit disclosure, where it is proportionate to do so. What is proportionate needs to be determined on a case-by-case basis.

The provisions apply in circumstances where the police are carrying out an investigation and would allow HSE to disclose information in connection with that investigation. Generally however, it is unlikely HSE would need to rely on these provisions because disclosure would, in the majority of cases, be permissible under s28 HSWA/DPA; in which case it would not be necessary to carry out the "proportionality" test. Inspectors are advised to consult with LAO if they believe they need/want to disclose information under the Act.

The information the police could pass to HSE is not covered by Section 17 and Schedule 4. They will only be able to disclose information they have the vires to disclose, subject to the provisions of the DPA. Note that, on working time issues, there are at present restrictions on exchange of information between HSE and the GLA (as there are between HSE and other enforcement agencies). This is an issue which the Department for Business and Skills (BIS) is currently seeking to resolve.

(b) The Gangmasters (Licensing) Act 2004

Section 19 provides for the disclosure of information between departments (including HSE) and Gangmasters Licensing Authority (GLA) for the purposes of the Act i.e. to disrupt and prevent the exploitation of labour by gangmasters (defined in Section 4) in agriculture, shellfish harvesting, food processing etc.

Any disclosure under the Act does so notwithstanding any restriction on the disclosure of information imposed by any other enactment, including the DPA. Any related disclosure to the police or another regulator would be subject to the limits on disclosure discussed above.

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Updated 2013-09-05