Disclosure in the aftermath of a serious incident
We look at how to respond to information requests from regulatory bodies conducting an investigation.
When a crisis occurs, it is imperative that the organisations and individuals involved have a clear understanding of the onus placed on them to properly respond to requests for information from the regulatory body (or bodies) conducting the investigation.
Police led investigations
When there is a fatal incident, the police will lead the investigation in the first instance until they reach a point where they are satisfied that there is no evidence of any serious crimes such as gross negligence manslaughter or corporate manslaughter.
During the period where the police have primacy they will submit requests for information to the parties involved which are usually responded to on a voluntary basis. It is not unusual where there has been a workplace death for these requests to continue over a period of many months and the search for information can take a considerable amount of time.
It is useful to keep a log of all the requests made by the police and a separate file of all the information provided. In addition, if an item cannot be found or there are issues obtaining access to specific documents (for example, because there are difficulties accessing a former employee’s emails) a careful note should be maintained of the efforts made to track down the information requested.
The police do have formal powers to search premises and remove documents (in some instances without a warrant). The PACE Codes will apply to such a search and, if requested to do so, the police should provide a record of what has been seized. It is critical that there is a list maintained of what evidence the police have in their possession as it may be some time before the obligations on the police to disclose that information are triggered.
Investigations conducted by the HSE and local authorities in relation to health and safety offences will follow a similar process to the police investigations outlined above. However, very often when a request is made for information, the regulator will specify that they are using their powers under section 20 of the Health and Safety at Work etc Act 1974 to require the production of certain documents.
A thorough search should be conducted whenever a request for information is made by an Inspector and the scope of the search and avenues explored should be documented.
Failure to comply with a request made under section 20 is an offence and therefore it is important to carefully consider any request made in this way. It should be noted that the Inspector’s powers extend to inspecting and taking copies of documents, it does not give them the right to seize the originals. If evidence is held on a computer, generally this should be printed out, as opposed to the HSE seizing the computer itself.
Very serious incidents which have or could cause public concern may result in a public inquiry. It is usually possible to identify at an early stage, based on the gravity of an event, whether such an inquiry is likely.
In terms of the documentary process, there will be a call for evidence made by the chairman and the individuals and organisations involved must provide the requested evidence to the best of their ability.
The terms of reference in public inquiries is usually very broad. All documents should be assessed to decipher whether they are of relevance to the issues being considered by the inquiry. The volume of evidence is often extensive in large scale public inquiries into multi-fatality incidents. It is a criminal offence to intentionally supress or conceal relevant documents which are subject to a compulsory request.
Legally privileged documents
Documents which are legally privileged are protected from disclosure and they cannot be seized. It is critical to consider each document carefully before it is shared with the regulator or public inquiry to ascertain whether it could be protected by either legal advice privilege or litigation privilege.
One of the common queries our clients have is whether incident reports created after a serious incident are legally privileged. This will very much depend on the circumstances and it is advisable to seek legal advice at an early stage to ensure that any refusal to furnish the regulator with such a document is appropriate.
Very often when responding to a request for information as part of a regulatory investigation or public inquiry there can be a focus on collating formal documents, reports and emails which are relevant to the particular incident. This can lead to informal papers or handwritten documents being missed or deemed outside the scope of the request. This point has been highlighted in the ongoing Grenfell Inquiry where concerns have been raised about potentially relevant “notebooks” which appear to have been disposed of. It will be interesting to see how this matter will be dealt with by the Inquiry and the relevance of this concern to any future criminal or civil proceedings.