Runaway tram accident investigation report

Summary

A request was made for the Health and Safety at Work Inspectorate report into a runaway Snaefell Mountain Railway tramcar incident on August 4, 2017. The Department of Environment, Food and Agriculture upheld the refusal to release the full report, citing an absolute exemption under the Health & Safety at Work Act 1974, though the outcome was marked as 'partial' following an internal review.

Key Facts

• The request concerned an investigation into a runaway tramcar incident on the Snaefell Mountain Railway.
• The incident occurred on August 4, 2017, involving dozens of passengers with no injuries reported.
• The authority initially refused the request based on Section 28 of the Health & Safety at Work Act 1974.
• An internal review confirmed the authority responded within timescales and conducted a reasonable search.
• The review noted similarities to a previous 2016 request where an exemption was wrongly applied, but maintained the refusal for this specific report.

Data Disclosed

• August 4, 2017
• 2018-08-22
• 2018-10-10
• 2018-09-20
• 2018-09-19
• 354997
• 563738
• 11
• 2
• Section 27
• Section 28
• Health & Safety at Work Act 1974

Exemptions Cited

• Section 27 of the Freedom of Information Act (Absolute Exemption: Information the disclosure of which is restricted by law)
• Section 28 of the Health & Safety at Work Act 1974 (Restrictions on disclosure of information)

Original Request

I would like a copy of the report by the Health and Safety at Work Inspectorate into the incident involving a runaway Snaefell Mountain Railway tramcar on August 4, 2017

Data Tables (1)

Data Tables (reformatted)

Full Response Text

Freedom of Information Co-ordinator Corporate Services Directorate Thie Slieau Whallian, Foxdale Road, St John’s, Isle of Man, IM4 3AS Tel no (01624) 685854 Fax no (01624 685851 Email: defa@gov.im www.gov.im

Our ref: 563738 9th October 2018

Dear ###

Further to your request for a review which was received on the 20th September. Your original request, received on the 22nd August stated: "I would like a copy of the report by the Health and Safety at Work Inspectorate into the incident involving a runaway Snaefell Mountain Railway tramcar on August 4, 2017" A response to this was sent on the 19th September and concluded that the report should not be released. Your review request states:

I would like to request a review of the decision to refuse the release of the HSWI investigation report into the runaway Snaefell Mountain Railway tramcar incident that took place in August last year. Similar grounds were used to justify refusal of a previous FoI request (354997) relating to the investigation into the runaway derailment of an SMR tram in March 2016. Information was subsequently released following an internal review when DEFA confirmed that an exemption had been wrongly applied. That exemption, as I recall (the review decision is not posted on the govt's FoI website), related to HSWI not wanting witnesses and others to be deterred from giving evidence to an investigation for fear they would be named in the newspaper. I believe that issue can easily be overcome by redacting names and wider sections of the report ahead of publication. There is a clear public interest in the disclosure of information about an incident in which the lives of dozens of passengers were put at risk. It is fortunate indeed that no one was hurt. The refusal on FoI 563738 also cites potential legal proceedings and states a summary will be published once any legal proceedings are concluded. I understand legal proceedings are underway against the DoI relating to incidents on the tramways but I do not believe the publication of a report would necessarily prejudice any court proceedings, again if suitably redacted. In the UK, accident investigation reports into incidents involving aircraft or ships are routinely published as they are produced, on the websites of the relevant bodies

(AAIB or MAIB), without prejudice to future court proceedings. There is no reason why the same should not apply in the Isle of Man. Internal Review Statutory Considerations 1. Did the public authority respond to your request within the required timescales? Review finding – Yes 2. Did the public authority provide the information requested? Review finding – No 3. Did the public authority conduct a reasonable search for the information? Review finding – Yes 4. If the public authority did not provide the information because of the application of a practical refusal reason, was the refusal clear? Review finding – A practical refusal reason was not applied. 5. If the public authority applied an exemption was it correct and was it explained? Review finding – see Outcomes below. 6. Did the public authority offer appropriate advice and assistance? Review finding – Yes 7. Did the public authority advise you of the internal review process and your right of appeal to the Information Commissioner? Review finding - Yes Outcomes Application of exemptions Much of the consideration of this request and the response is similar to your request of September 2016 into another incident on the Snaefell Mountain Railway. Although each of the requests has been assessed on its own merits there are significant similarities. You will therefore understand that some of the reasons and arguments given below are very similar, or even the same. The original response concluded that there was an absolute exemption under section 27 of the FoIA Absolute Exemption 27 Information the disclosure of which is restricted by law (1) Information is absolutely exempt information if its disclosure by the public authority holding it — (a) is prohibited by or under any statutory provision;

(b) is incompatible with an EU obligation that applies to the Island; or (c) would constitute or be punishable as a contempt of court. The response stated that “In this case Section 28 (Restrictions on disclosure of information) of the Health & Safety at Work Act 1974 (as applied to the Isle of Man) restricts release of this report.” This section of the Health & Safety at Work Act 1974 (as applied to the Isle of Man) states: Restrictions on disclosure of information 28. (1) In this and the two following subsections - (a) "relevant information" means information obtained by a person under section 27(1) or furnished to any person in pursuance ·of a requirement imposed by any of the relevant statutory provisions; and (b) "the recipient", in relation to any relevant information, means the person by whom that information was so obtained or to whom that information was so furnished, as the case may be. (2) Subject to the following subsection, no relevant information
shall be disclosed without the consent of the person by whom it was furnished. (3) The preceding subsection shall not apply to - (a) disclosure of information to the Department, any other Department or any enforcing authority; (b) without prejudice to paragraph (a) above, disclosure by the recipient of information to any person for the purpose of any function conferred on the recipient by or under any of the relevant statutory provisions; (c) without prejudice to paragraph (a) above, disclosure by the recipient of information to - (i) an officer of a local authority who is authorised by that authority to receive it, or (ii) a constable authorised by the Chief Constable to receive it; (d) disclosure by the recipient of information in a form calculated to prevent it from being identified as relating to a particular person or case; (e) disclosure of information for the·: purposes of any legal proceedings or any investigation or inquiry held by virtue of section 14(2), or for the purposes of a report of any such proceedings or inquiry or of a special report made by virtue of section 14(2).

In order to understand section 28 it is necessary to consider section 27 of that Act. Obtaining of information by the Department, enforcing authorities etc 27. (1) For the purpose of obtaining - (a) any information which the Department needs for the discharge of its functions; or (b) any information which an enforcing authority needs for the discharge of the author functions, the Department may serve on any person a notice requiring that person to furnish to the Departm or, as the case may be, to the enforcing authority in question such information about such matter may be specified in the notice, and to do so in such form and manner and within such time as may so specified. In this subsection "functions" means functions under this Act. Provided that the information contained in the report was obtained under section 27 of the Health & Safety at Work Act 1974 then section 28 of that Act does provide a statutory prohibition and section 27 (1) (a) of the FoIA is properly engaged. However, it is necessary to consider whether the information in the “report” was in fact obtained pursuant to section 27 the Health & Safety at Work Act 1974. Section 27 is a general power to obtain information. Section 14 of that Act deals with investigations and inquiries in the following terms:- Power of the Department to direct investigations and inquiries 14. (1) This section applies to the following matters, that is to say any accident, occurre situation or other matter whatsoever which the Department thinks it necessary or expedien investigate for any of the general purposes of this Part or with a view to the making of regulations those purposes; and for the purposes of this subsection it is immaterial whether the Department i is not responsible for securing the enforcement of such (if any) of the relevant statutory provision relate to the matter in question. (2) The Department may at any time - (a) direct one or more of its inspectors or authorise any other person who in the opin of the Department is suitably qualified to investigate and make a special report on matter to which this section applies; or (b) direct an inquiry to be held into any such matter. The reviewer has spoken with the HSWI and it is clear that the Inspectorate was exercising its powers under section 14; that is to say that the Department (or in fact

the Director in exercise of powers delegated to him by the Department) had directed an inspector to conduct an investigation under section 14 into an incident. The view of the reviewer in that regard is further strengthened by the claiming of the Qualified Exemption under section 31 of the Freedom of Information Act 2015 since the exemption claimed relates to “Investigations and Legal Proceedings”. In addition to the above Section 14 of the Health & Safety at Work Act 1974 goes on to state: (5) In the case of a special report made by virtue of subsection (2)(a) above or a report made by the person holding an inquiry held by virtue of subsection (2)(b) above, the Department may cause the report, or so much of it as the Department thinks fit, to be made public at such time and in such manner as the Department thinks fit. This provides the Department with total discretion with regard to publication of a report; and on that basis an argument of an Absolute Exemption under section 27(1)(a) of the FoIA is undermined. Indeed it could be argued that section 14(5) creates a public interest test on publication; in which case an absolute exemption is not appropriate. The review therefore concludes that there is no valid Absolute Exemption under section 27 of the Freedom of Information Act 2015. Qualified Exemption – Section 31 The original response also claims a qualified exemption under section 31 of the FoIA. It is clear that the information requested (that is, the “report”) was indeed obtained as part of an “investigation ………that in the circumstances may lead to criminal proceedings being instituted” and thus section 31(1)(b) is engaged. Whilst this appears to be the best fit a coherent argument could also be made for the engagement of section 31(1)(a). 31 Investigations and legal proceedings (1) Information held by a public authority is qualified exempt information if it has at any time been held by the public authority for the purposes of — (a) an investigation that the public authority has a duty to conduct to ascertain whether — (i) a person should be charged with an offence; or (ii) a person charged with an offence is guilty of it; (b) an investigation, conducted by the public authority, that in the circumstances may lead to criminal proceedings being instituted; or (c) any criminal proceedings that the public authority has power to conduct.

As the Department has a duty under the Health & Safety at Work etc. Act 1974 (as applied to the Isle of Man) (HSWA) to investigate workplace incidents to determine whether an offence has occurred the information in this report falls within this category of qualified exempt information. The review also finds that section 31(2)(b) applies. This information was “obtained … by the [Department] for the purposes of its functions relating to” section 31(1)(a) and it was obtained “from confidential sources” These sources were the staff members who gave information openly that enabled the investigation to determine the cause of the incident and consequently helped to improve public safety in the future. The presumption of the confidentiality of Health & Safety investigations is critical to the successful operation of the legislation and must be maintained in order to improve the Health & Safety of workers and those they serve. Public Interest Test The review is satisfied that the factors cited both for and against release of information in original Public Interest Test are relevant. There is another factor however that is equally relevant, namely: • The likelihood of criminal or civil proceedings being instigated as a result of the investigation. Although this may be a factor either in favour of disclosure or against it the review believes that if it is against disclosure it should properly weigh heavily in any decision. The review concludes that it cannot be in the public interest to release information that might prejudice any criminal or civil legal proceedings. Although it may be a factor which will change over time in relation to this particular request and due to the very recent nature of the incident and the continuing potential for legal proceedings this factor weighs against release of the information. Decision 1. This review concludes that the application of the absolute exemption (section 27) was incorrectly applied. 2. This review concludes that the application of the qualified exemption (section 31) is justified and withholding the report is the correct course of action in the current circumstances. The final decision of this review is that your complaint is not upheld. Specific Issues you raised 1. “… not posted on the govt's FoI website …” The full review of your previous request is appended to the request itself, and has been online since that review was completed in January 2017. The review itself begins on page 7 of the 21 page document; ref. 354997, "Snaefell tram deraillment H & S report".

LINK - https://iom.icasework.com/servlet/ep.getImg?ref=55415&bin=Y&auth=0&db=ZVD1 ZPdIGvo%3D&access_token=M- gcU0Pn4HXHLUtCx5rbtPGolmRJNEUfVdk1OsG1huQ%3D.gKtTscJKBItdoJ7b46m- RA%3D%3D 2. “… easily be overcome by redacting names …” A report contains much more information than names and it is critical in this instance that any potential legal proceedings are allowed to run their course unhindered by the untimely release of information which may prejudice that process. It is not appropriate for the decision about what may and what may not be prejudicial to any court proceedings, to be taken by Department officers. 3. “… a clear public interest in the disclosure of information …” While I agree with your sentiment, in this instance there is a greater public interest in ensuring the Health and Safety process, which may include legal proceedings, is allowed to run its course unhindered by the untimely release of information which may prejudice that process. 4. “… I do not believe the publication of a report would necessarily prejudice any court proceedings, again if suitably redacted.” Due to the possibility of legal proceedings and the significance of this case it is not appropriate for the decision about what may and what may not be prejudicial to any court proceedings to be taken by Department officers. Consequently this review believes that it is appropriate to withhold the report in i

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