Stating the exemption
Section 38 of the Act specifies the following exemption in relation to the disclosure of information:
The following terms may require some elucidation.
1.1 Likely to endanger: in this context can be interpreted as meaning "likely to put someone's health or safety at risk, or at greater risk". It connotes risk of harm rather than harm itself; 'likely to' suggests a result which could reasonably be expected, but which does not have to be specifically foreseeable.
1.2 Physical or mental health: may and should be given a natural, general meaning to include bodily or psychological integrity and well being. There are signs (particularly in Commonwealth cases) that courts take a broad approach to these kinds of definitions where the protection of these sorts of interest are concerned and they may include such matters as physical or mental impairment, injury, illness or disease (including the recurrence, aggravation, acceleration, exacerbation, or deterioration of any pre-existing impairment, injury, illness or disease). Mental health in particular may in an appropriate case include emotional and psychological well-being, and should not necessarily be artificially limited to mental consequences identifiable by some particular medical or psychiatric pathology, nor to what is often called shock or trauma.
1.3 Safety: should again be given its ordinary meaning to include protection from harm. The OED defines safety as "...the state of being protected from or guarded against any hurt or injury; freedom from danger...". As in the present context the term concerns the safety of individuals a broad approach is again likely to be right.
1.4 Any individual: The exemption refers to the physical or mental health, and to the safety, "of an individual". That person may be identified, or readily identifiable. But equally, he or she may be unidentified. He or she may be a member of a group or class of persons, any of whom or all of whom are likely to have their health or safety endangered by the disclosure. Or he or she may be a member of the public, where the danger is to the health or safety of the public at large.