Some skeletons still remain in the cupboard despite Freedom of Information Act

The Health and Safety Authority (HSA) does not yet come under the remit of the Freedom of Information Act 1997, which among other things established the public's new statutory right of access to information held by specified public bodies.

That Act proclaims the "right of members of the public to obtain access to official information to the greatest extent possible consistent with the public interest and the right to privacy of individuals". Crucially, the presumption of the Act is for the public body to give out information rather than conceal it. The Act was to bring in a "new era of openness" and "the end of the culture of public service secrecy".

But because the HSA is not yet covered by the Act, a client may not know the health and safety record of a given contractor. The client has no means of knowing if the contractor has just been served by the HSA with an improvement or prohibition notice.

Improvement notices may be served when a HSA inspector believes that a person or company is contravening or has contravened health and safety statutory provisions or has failed to submit or implement an improvement plan following a direction to do so. Prohibition notices - which can have the effect of stopping all work - direct that specified activities, such as the use of scaffolding or of a machine, must not be carried on "unless the matters specified in the notice have been remedied".

Dr Denis Cusack, physician, barrister and medico-legal specialist, spoke on the theme "Freedom of Information - a benefit or threat to safety?" at the recent Dublin Castle joint conference of the HSA and the Health and Safety Agency for Northern Ireland. He told The Irish Times his brief was to focus on Freedom of Information and health and safety in general, rather than specifically to address the issue of the HSA and the Freedom of Information Act.

Asked if he believed it would be in the public interest for the HSA to come under the remit of the Act, Dr Cusack said: "I think it is a good thing if all agencies come under the remit of the Act but provided that there are also the proper safeguards."

Confidential information would need to be protected. "But as I pointed out [in his speech to the conference] the whole thrust of Freedom of Information is access to information unless there's a good reason" for not releasing the information "rather than: `we're not going to give this out unless somebody comes up with a good reason'. It's a complete reversal of public service thinking to date. The information must be given unless it comes under an exemption."

And even if it is believed to come under an exemption, there's still an internal review and the right of appeal to the Information Commissioner if someone is not satisfied, and ultimately, on a point of law, perhaps to the High Court, he said.

The Freedom of Information Act has built-in safeguards in the form of exemptions from the public body's duty to disclose information. These include commercially sensitive information, information obtained in confidence, personal information or information which could be exempt due to possible prosecution, he said.

But he concedes "it's hard to know the interplay" between sections of the Safety, Health and Welfare at Work Act 1989 and sections of the Freedom of Information Act concerning disclosure.

A spokesman for the HSA concedes that at present while clients can ask a company about its health and safety record and experience, the clients have "no way of actually accurately measuring that". Clients have "no way of independently verifying the information that's provided". For the HSA, "it's a thorny legal issue. The Authority has, as part of its 1989 Act, quite strict legal provisions in relation to the disclosure of information," he said.

The Safety, Health and Welfare at Work Act 1989 provides that a HSA inspector shall disclose factual information to workers or their representatives where it is necessary to keep workers informed about matters affecting their health, safety or welfare, providing trade secrets are not revealed and the same information is given to the employer. But here the 1989 Act appears to adopt a restricted "grace and favour" approach to the disclosure of information, rather than the "new era of openness" and the "the end of the culture of public service secrecy" asserted in the Freedom of Information Act.