The traditional method of releasing first-hand information acquired by inspectors to parties involved in civil proceedings has been by way of factual statements. The arrangements for the disclosure of information by inspectors appointed under statute were originally set out in an agreement ("the disclosure agreement") with the Law Society of Scotland which was published in the Journal of the Society in October 1956. The text of the agreement is produced at the end of this section: Disclosure of information by HM Inspectors of Factories about industrial accidents [15KB]. Although it relates to HM Inspectors of Factories it is generally accepted that HSE inspectors should follow these procedures.
In practice, because of developments in the law relating to freedom of information, factual statements are now rarely requested and the practice is less common. Instead solicitors obtain factual information held on HSE’s records once criminal proceedings are at an end. In addition, divisions and directorates of HSE will have administrative arrangements in force for dealing with freedom of information requests and other civil disclosure issues.
The HSW Act provides in subsection (9) added after section 28(9):
"Notwithstanding anything in subsection (7) above, a person who has obtained such information as is referred to in that subsection may furnish to a person who appears to him to be likely to be a party to any civil proceedings arising out of any accident, occurrence, situation, or other matter, a written statement of relevant facts observed by him in the course of exercising any of the powers referred to in that subsection".
This provision clarifies that information obtained in an investigation can be disclosed without consent , as long as the person making the application is likely to be a party to civil proceedings arising out of the situation investigated. The original restriction to factories and to notifiable accidents and diseases is removed. As such statements can be given:
- About the investigation of a complaint or about a situation disclosed during inspection
- To persons other than solicitors, eg Trade Union accident investigation departments, insurance companies or associations, or parents or spouses acting on behalf of someone who is to be a party to the proceedings, providing they have written authority from that party.
- To a person acting on behalf of a member of the public injured or suffering damage from an incident.
It should be noted that s28(9) makes it permissible, but not obligatory, for an inspector having relevant information to supply a factual statement; the commitment to do so still relates to the agreement with the Law Society.
A statement should only be issued when an incident or situation has been investigated or inspected for a purpose covered by current work planning guidelines or instructions. Accidents should not be investigated merely because a request for a statement has been received. If the incident has not been reported and it is not clear from the applicant's letter that the incident was reportable, you should attempt to obtain the necessary information, preferably without making a special visit (either by telephoning the responsible person or by requesting the applicant to supply further information). If the incident was not reportable the applicant should be advised of this. If enquiries show that the incident was reportable or if it is immediately clear from the applicant's letter that it should have been reported, you should consider whether to investigate it, either with a view to taking legal proceedings for failure to report or because the nature of the incident was such that he/she considers it should be investigated. If you decide that the incident should be investigated, then a statement can be supplied in the normal way following the investigation.
You may discuss administrative aspects relating to factual statements on the telephone, but all statements and any subsequent clarification of information should only be given in writing.
Statements should be given subject to the following conditions:
- the accident or situation must have been investigated or inspected;
- there must be no criminal proceedings under consideration or pending;
- the statement must be confined to factual information observed by the person making the statement at first hand and should not include any reference to past history;
- if only a brief report of an investigation has been made or insufficient information has been recorded for a meaningful statement to be prepared this should be made clear to the applicant;
- the statement should not disclose:
- your (inspector's) comments,
- any evidence given to you by persons interviewed,
- the names and addresses of known witnesses of the incident, or
- information which is "commercial in confidence" or restricted information covered by the Official Secrets Act.
The factual statement should be drafted by the inspector who investigated the incident or situation. Where the circumstances were investigated by more than one inspector, or involved laboratory analysis, separate factual statements may be needed. The inspectors concerned should discuss the request to determine whether separate statements will be needed to cover the facts to an extent that would justify payment of separate fees. If the statement from the inspector who receives the request will not cover all the facts and payment of additional fee(s) would be justified, this should be made clear in the reply. Equally if other inspectors were involved, but their statements would add little or nothing, this should also be stated in the reply. Where it has been agreed that more than one statement will be supplied, the texts should be scrutinised to ensure completeness, and no statement should be sent out until the inspectors involved agree that the relevant facts are covered in the statements taken together
Where circumstances have changed considerably between the time of the incident and the time of investigation a factual statement may be misleading or even valueless. Any statement supplied must clearly set out the circumstances prevailing at the time of the investigation; if these are different from the incident, a letter should be sent to the applicant explaining that any statement is likely to have little value given the lapse of time between the investigation and the incident on which the case is based.
A party requesting a factual statement about an incident investigated by an ex-inspector should be advised that as the inspector with first-hand information has now left HSE no statement can be provided. In appropriate cases, the responsible Band 2 inspector should advise the ex-inspector in writing of the request, and ask whether his or her address may be divulged, so that the statement can be taken direct from the inspector. An ex-inspector who agrees to assist, should supply the statement directly and arrange his or her own fee. If he/she declines to allow HSE to divulge his/her present whereabouts, then the ex-inspector's address should not be disclosed. Where an ex-inspector receives a request for a factual statement, and makes contact with the office, he should be allowed access to the papers with which he was involved while an inspector,
Requests for information may come in two forms - a specific request for a factual statement, or a more general request for information about the incident or situation. It is important to appreciate that the different forms of request have implications in terms of the Freedom of Information Act 2000, the Data Protection Act 1998, the Human Rights Act 1998, the Environmental Information Regulations 2004 and HSE Guidance on the Freedom of Information Act & disclosure of information to the public (formerly GAP 1).
General requests should be dealt with by following the instructions on the Freedom of information intranet site. More specific requests for information relating to civil disclosure should be dealt with by following Disclosure of information contained in HSE investigation reports.
When a specific request for a factual statement is received, you, or the relevant Band 2 inspector, should consider in the light of the above guidelines whether a statement can be provided. If it can, you should decide the fee which will be applicable. You will have to estimate the number of hours that will be required to provide the requested information, and apply a charge of £25 per hour (or £45 per hour in the case of mining, nuclear or offshore inspectors). A letter should be sent to the applicant detailing the fee and making it clear that the statement can only be provided on receipt of the appropriate payment.
Photographs can be supplied at cost, plus an administrative charge of £8. When the fee is received you should prepare the statement and agree it with your line manager. It should then be signed by you, as the inspector who prepared it, and sent to the applicant with a covering letter in the name of the Band 2 inspector which should give the name and present official address of the person who investigated.
Factual statements – additional information
If, after the statement is sent, a request for further information is received it can be provided in the form of a letter approved as the original statement and signed by the person who made the factual statement. However, additional information must be restricted to fact only and must not be extended to include any commentary on the facts given in the statement. Frequently inspectors are asked for their comments; such requests should be refused.
If a request is received for information concerning an accident from any other person/body which is not itself a party to legal proceedings, a factual statement should not be supplied, but inspectors should issue the normal response as required by Freedom of Information Act.
When a request is made for the names and addresses of witnesses obtained by inspectors in the course of their investigation, the request should be denied. Those requesting the information should be told that it will be included in the material produced in response to any court order which they obtain.