A forklift tips over and drops containers of hazardous substances. The forklift driver is hurt. And the containers break open and spill the substance all over the ground. You report the incident as required by the province’s OHS and environmental laws. You then investigate the incident and create an internal report on it, including what happened, a frank assessment of the cause and the steps the company should take to prevent similar incidents in the future. An OHS official comes to your workplace to investigate the incident and asks for a copy of your incident report.
How should you respond to the inspector’s request?
A. “I’ll give it to you only if you have a search warrant.”
B. “Let me speak to corporate counsel and I’ll get back to you as soon as possible.”
C. “Sure, here it is.”
D. “What investigation report?”
CLICK FOR ANSWER
B. You should explain that you first need to discuss the request with the company’s lawyer and will promptly get back to the inspector.
This scenario is one in which many companies find themselves after a safety incident. Aside from being required by law, conducting an internal investigation of safety incidents is necessary to determine what went wrong and what corrective actions are necessary to prevent recurrence. And you’ll generally create a written internal report based on that investigation. But government OHS officials looking into the incident may want to see that report either to determine whether to charge your company for the incident or, if they’ve already decided to lay charges, to search for evidence to use in the prosecution.
Responding to an official’s request for your internal incident report is tricky. On one hand, you don’t want to voluntarily give the government evidence that might harm the company in a prosecution. On the other hand, refusing to turn over the report could lead to obstruction charges—against you and the company. And the fact is that you may not have to turn over the report.
For example, you don’t have to disclose the report if it’s “privileged.” In addition, the official’s right to the report may depend on whether he’s conducting an inspection or an investigation. The problem is that deciding whether a document is privileged and whether the government is inspecting or investigating are complicated legal issues that you need a lawyer’s input to resolve. Because you’re in no position to make these determinations—especially on the fly—the best response to an OHS official who requests your internal incident report is to politely explain that you first need to consult with the company’s lawyer and will get back to the official as soon as you can. In most cases, officials will accept that response.
Why Wrong Answers Are Wrong
A is wrong for two reasons. First, OHS officials have broad authority to enter premises, ask questions and request documents related to a company’s safety compliance without a search warrant. Second, by refusing to turn over the report unless the official has a search warrant, you’re taking a confrontational approach and make it more likely that the official will hit you with obstruction charges.
C is wrong because you could be undermining your company’s defences down the road if it’s charged with safety violations based on the incident. Yes, this response will certainly protect you from obstruction charges. But in protecting yourself, you could be turning over information that could hurt your company—and that may not need to be disclosed to the government.
D is wrong because lying to officials as to the existence of the report could very well lead to obstruction charges. Although you shouldn’t advertise the report’s existence, you also shouldn’t lie about or conceal it. In other words, if an OHS official asks point blank whether you have an incident report and you do, don’t pretend otherwise. (Of course, you don’t have to volunteer that information if the official doesn’t ask.)
Insider Says: For more information on incident reports, see “Internal Incident Investigations: Using ‘Privilege’ to Keep Sensitive Safety Records Confidential,” Aug. 2006, p. 1; and “Surviving OHS Investigations: What to Do When OHS Officials Demand Your Incident Reports,” Feb. 2010, p. 1.