HSE's secrecy errors over breaches of GM release consents

The Health and Safety Executive (HSE) has refused to disclose the identity of companies which have breached their consents to release genetically modified (GM) crops. The decision, which will do nothing to build public confidence in official oversight of the biotechnology industry, was made under the wrong rules, misapplied the rules that were used, went against practice under other environmental protection regimes - and shows how some authorities are evading legislation on access to environmental information by not organising their records in anticipation of requests for information.

The HSE's decision was made in response to a request by Friends of the Earth (FoE) for information on inspections of GM crop release sites and compliance with release consents. FoE received little of the information it sought.

  • Inspections: FoE asked how many inspections were made annually and how many of the sites covered by consents had been inspected. The HSE replied: "Some of the information which you request is not readily available. I therefore decline to collate such information under exemption 9 of the Code of Practice on Access to Government Information, on the basis that the provision of such information would require an unreasonable diversion of resources."

    The code allows requests to be refused on these grounds. However, FoE's request was made under the Environmental Information Regulations 1992, which implemented an EC Directive that does not provide such an exemption. The Directive allows refusals only where a request is "manifestly unreasonable or formulated in too general a manner." Public bodies are not at liberty to decide requests under the code when they are made under the regulations.

    The HSE did provide some information, estimating that 70 and 75 site visits were made in 1995/96 and 1996/97, respectively, and confirming that 70 were made in 1997/98 when 63 consents were in force. Each consent typically covers several sites - this year, for instance, there are 75 consents covering some 330 sites - so only a small proportion of sites are being inspected.

    The case is not the first to suggest that it is all too easy for public bodies to evade their duties under the EC rules by failing to organise their records in a way which facilitates retrieval of information, and then to argue that it would be too expensive to search their files. Two years ago, the Department of Trade and Industry refused a request for data on oil spills from offshore oil and gas facilities, unless the applicant paid £4,300 for a search of its records (ENDS Report 261, pp 3-4 ).

  • Breaches of consents: Exemption 9 of the code was also cited by the HSE in response to FoE's request for the number of breaches of consents since 1993. The HSE gave only information for breaches since last April. Five breaches were identified by inspectors at the 49 sites visited so far this year.

  • Companies in breach: The HSE turned down a request that it identify the companies which have breached their consents. This time, it cited exemption 13 of the code, which provides an exemption for information whose disclosure "might unreasonably disadvantage the person to whom it relates."

    The HSE did not explain what "unreasonable disadvantage" it had in mind. But the refusal was clearly misguided on two counts. First, the request should have been determined under the 1992 regulations, which allow no such exemption. And second, exemption 13 does not apply in any event. The code makes it clear that it applies only to information supplied to the authorities, and not to information acquired by officials during inspections.

    The HSE's approach is also remarkable because it flies in the face of practices under other regimes. Breaches of discharge consents, waste management licences and industrial pollution control authorisations are routinely recorded on public registers. Practice does vary somewhat between these regimes, but breaches of non-numerical conditions of the kind found in GM crop release consents are often recorded on the registers, sometimes via inspectors' reports.

    Moreover, several breaches of release consents have already been disclosed by the Advisory Committee on Releases to the Environment (ENDS Report 284, pp 3-4 ). Significantly, the Committee is based at the Department of the Environment, Transport and the Regions (DETR), which operates a more liberal approach to disclosure than the HSE.

    The HSE refused to comment on any of these points. Instead, it referred ENDS to the DETR on the grounds that it acts as an enforcement authority on the latter's behalf.

    In a letter to ENDS, the head of the DETR's Biosafety Unit, Dr Linda Smith, said the HSE now accepts that FoE's request should have been determined under the 1992 regulations.

    Dr Smith declined to comment in detail on the case pending the HSE's decision on FoE's appeal. But she added that the DETR "is committed to making available as much information about releases of GMOs as possible and we agree that information is the key to building public confidence." The opportunity to encourage the HSE to adopt a more liberal approach will come shortly when its annual contract with the DETR comes up for renewal.

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