Introduction

The Rail Safety Unit (RSU) has the power to obtain information and documents relevant to a rail safety matter from industry and other persons and from accredited operators as the result of safety audits and other communications. As a result, the RSU has in its possession at times information about operators, contractors and rail safety workers which may be commercial in confidence, politically sensitive, relevant to legal proceedings (including inquests) or otherwise confidential.

The RSU also receives information from other government agencies or departments which may be sensitive, and is also often asked to provide information requested by other parts of government, the media, members of the public, other regulators and industry. 

This policy sets out the RSU?s position on the release or disclosure of the information it holds as the result of its statutory role and carrying out its functions.  This policy does not relate to the assessment of requests for access to documents under the Freedom of Information Act 1991.

Scope

This policy applies to all documents in the possession of the RSU, regardless of their creator, or whether they are in draft or final form. 

?Document? is defined in this policy as being anything on which is marked any words, figures, letters or symbols that are capable of carrying a definite meaning to anyone conversant with them.  This captures written documents, photographs, charts, diagrams, emails, electronically stored information, computer disc drives and so on. 

This policy does not apply, however, to those documents in the RSU?s possession that are publicly available documents (for example, library materials).

Functions and role of the RSU

The RSU supports the Administrating Authority in the performance of the Authority?s functions, which include:

• Administering, auditing and reviewing the accreditation regime under the Rail Safety Act 1997;
• Working with accredited railway organisations and other stakeholders involved in railway operations;
• Collecting and publishing information relating to rail safety;
• Providing, or facilitating the provision of, advice, education and training in relation to rail safety;
• Monitoring, investigating and enforcing compliance with the Rail Safety Act 1997.

Policy and legal issues

The decision on whether or not to release information outside the RSU when a request is made is one which raises competing policy issues and legal considerations.

There may be a public interest in disclosing certain information about the safety of the rail systems, or individual operators.  For example, if the RSU becomes aware of a specific problem with particular rail infrastructure, then disclosure of this information to other parts of government or other operators may be necessary to ensure that the problem is remedied in future procurement, or that particular mitigating controls are put in place. The use of Safety Alerts is an example of this.

However, the RSU operates in a co-regulatory environment, and relies on industry to be frank and open with it, particularly during audits of the safety management systems of accredited operators.  Disclosure of information obtained during such an audit would deter frankness and openness of operators. That is because operators will be less inclined to admit to problems if they know that the information will be routinely released or used against them, perhaps leading to less effective safety outcomes being adopted.

The Freedom of Information Act 1991 encourages the disclosure of information and gives members of the public a statutory right to access the documents in the RSU?s possession, subject to any exemptions or exclusions which may apply.

Principles

In view of the above, the RSU adopts the following principles when a request for information is made:

Request for information about an individual

The RSU will not release personal, sensitive or health information about an identifiable individual unless that disclosure is essential for the RSU to carry out its functions, or that individual has given consent for that release, or the release is required or authorised by law. 

Requests for information about a company, incorporated association or other legal person (other than an individual)

The RSU will usually release information of the following type:

• The name of the entity, its registered or business address, whether it is accredited or not, conditions attaching to the accreditation, the names of officers of the entity (eg. directors), or other information which is publicly available, for example, through an ASIC search.

The RSU will not release information which has been provided expressly to the RSU in confidence, unless it has the consent of the entity.

The RSU will not release information which could reasonably be expected would be regarded as confidential or sensitive by the entity, unless the Administrating Authority has determined that that disclosure is necessary for public safety or the entity has consented to the release.

Requests for information concerning audit or compliance issues

Audits are generally considered to be confidential.  Subject to the following exception, the RSU will not disclose audit reports or information obtained during an audit.  It may, however, disclose dates on which audits took place, and in respect of which entities.  The RSU may disclose a summary of the audit findings if it considers necessary for the safe operation of the rail network.

The RSU may disclose reports of compliance inspections or investigations.  This will be determined on a case by case basis, but with a presumption that disclosure should occur, even if only in summary form. 

The RSU will not normally disclose draft reports.

Requests for data and statistics

Data which identifies particular individuals (including operators that are individuals) will not be disclosed, unless it is required or authorised by law or in the interests of rail safety.

Requests for incident reports, investigation reports, annual reports or any other reports prepared and provided by industry

The RSU may disclose reports.  This will be determined on a case by case basis, but with a presumption that disclosure should occur, even if only in summary form.  Determining factors will be:

• The degree to which disclosure is necessary or desirable for the safe operation of the rail network; 
• Whether there is information about the entity which is commercially sensitive or confidential. If there is, RSU may disclose other parts of the report which do not contain that information.

Requests for access to internal RSU files or documents

These will not normally be disclosed. However, standard RSU procedures, policies, guidelines and manuals may be disclosed.

FOI Requests

FOI requests are not covered by this policy.  These are managed by DIER?s FOI Officer.  All documents which fall within the ambit of an FOI request will be given to the FOI Officer.  Whether the documents are disclosed, however, is a decision which is made by the FOI Officer, with advice from the RSU.

If the RSU refuses to provide access to a document covered by this policy, the person requesting should be informed that they have a right to request access to the document under FOI.

Subpoenas and other court requests

All documents relevant to a subpoena will be referred for internal legal advice.  Internal RSU documents which may be subject to a subpoena will not be removed from the RSU until a decision has been made on whether or not those documents must be produced to the court. 

Requests from other parts of Government

The principles set out above apply, even where the person making the request is a state servant.  However, other parts of DIER often seek information from the RSU to assist in the development of broader policy.  Without such information, the safest development and planning for transport may be hindered.  In these circumstances, the RSU may disclose information it has about operators or research, but may also require the person obtaining this information to treat it as confidential.  In some cases the RSU may require the person to provide a written undertaking to this effect.

Requests from the public and media

The RSU will not disclose information other than in accordance with the principles above.  However, the RSU will remind members of the public and the media of their right to seek access to documents through the FOI Act.

Requests from other regulators

The RSU will endeavour to assist other regulators wherever possible.  Accordingly, the RSU will endeavour to disclose information as much as it can to regulators, subject to obligations of confidentiality imposed on the RSU, or legal constraints.