2.1 Section 38 is not an absolute exemption. In order to decide whether information should be disclosed or withheld officials will therefore firstly need to assess the likelihood of disclosure endangering the health or safety of an individual, and consequently weigh the competing public interest in disclosing or withholding the information in all circumstances of the case. Section 38(2) exempts departments from the duty to confirm or deny holding the information if this would be likely in itself to endanger the considerations mentioned in section 38(1).
2.2 When applying this exemption, it is important to bear in mind that information about health and safety is not the same as information which endangers health and safety. For example, the Health and Safety Executive is responsible for ensuring that risks to people from work activities are properly controlled and works with others to improve health and safety in the changing economy for the benefit of society as a whole. Not all information relating to health and safety will be information whose disclosure would endanger health and safety. It is also important to bear in mind that very much information relating to health and safety is likely to be environmental information and therefore exempt under section 39 of the FOI Act. If this is the case, its disclosure falls to be considered under the Environmental Information Regulations 2004 ("EIRs").
Departments should also be particularly alert in the context of this exemption to whether the request is for personal information which would be exempt under section 40. For example, disclosure of information which would enable organised criminals to identify informants providing information to law enforcement agencies would be very likely to endanger those informants. Their very identifiability will mean that section 40 is also engaged (and section 30(2) is very likely to be relevant here too).
2.3 There are many different ways in which disclosure of information could endanger someone's health or safety. In particular, that effect could be achieved either directly or indirectly. An act of disclosure will not always in and of itself have an endangering effect. It will almost never cause physical harm directly - it will usually do so through the instrumentality of the individual in question (for example by leading him or her to take steps which create the danger - such as ceasing to take medication) or of a third party (for example by enabling someone to cause harm to others). But it may cause mental harm directly, for example as a result of shock or distress.
The following are some examples of disclosures with an evident potential for the kind of endangerment to which this exemption applies (as mentioned above, the danger need not be to a particular named person):
It is important to bear in mind that some people's health or mental health may be more easily endangered than that of others. Where a particularly vulnerable person is likely to be affected by disclosure, that may need to be taken into account.
Note also that in many cases information that could endanger an individual's safety may also endanger their mental or physical health. If that is the case, both parts of the exemption may be relied on.
It should also be borne in mind that information relating to health and safety may very often be environmental information within the meaning of the Environmental Information Regulations. If such information is environmental information, exemption from the FOI Act under section 39 must be claimed and the disclosure of that information should be considered under the Environmental Information Regulations.
2.4 If it is decided that information subject to an FOI request would fall within the terms of section 38, Departments will need to consider the public interest test as to whether the public interest in withholding the information outweighs the public interest in disclosing the information. Determining the balance of the public interest will need to be determined on a case by case basis.
Given that it is never in the public interest, of itself, to endanger the health and safety of any individual, this will in itself need to be taken into account. More generally, details to be considered will include:
There is a public interest in disclosing information in order to reduce the potential danger to people and to increase their personal freedom by making them aware of various risks and enabling them to take appropriate action. If the recommendations and information supplied by departments with specific responsibilities to inform the public of health and safety issues are to be trusted and acted upon, that relies on a level of trust which may in turn be enhanced by a high level of disclosure. While it could be argued, for example, that it is in the public interest to withhold speculative, or incomplete information about the efficacy or safety of a particular drug on the grounds that it could dissuade people who need to take it from taking it (thereby endangering their health) this will need to be carefully balanced against the importance of giving the fullest possible information to individuals about matters relating to their own health, and the risk that withholding the information is likely to give the impression that there is something to hide that could undermine public trust, and consequently government's ability to persuade people to follow its recommendations; this is an area in which the public interest in disclosure may be particularly strong.
2.5 There may be legal prohibitions on disclosing information which would endanger an individual's health or safety. The most relevant examples include the Rehabilitation of Offenders Act 1974 and section 28 of the Health and Safety at Work Act 1974. Guidance on dealing with legal prohibitions on disclosure is included in the guidance on section 44. It is important to be alert to the possibility of such information being environmental information within the meaning of the Environmental Information Regulations, in which case, exemption from the FOI Act under section 39 must be claimed and the disclosure of the information considered under the Environmental Information Regulations.
More generally, at present a disclosure of information which causes personal injury is capable of exposing the discloser to legal action for compensation. A Department can potentially face a claim for damages if it discloses information in circumstances which could foreseeably injure someone. That makes it particularly important to consider any disclosure with this sort of potential with very great care. Under the FOI Act, provided that the potential for withholding information in reliance on section 38 (and any other relevant provision) is fully and carefully weighed, a decision to disclose which is required by the Act, and which does in fact cause personal injury, should not expose Departments to legal risk of actions for damages. But it will be crucial that the reasons for and processes of coming to that decision are very carefully documented. And it will necessary where possible to give the individuals likely to be affected an opportunity to make representations before the decision is taken. Such cases are, however, likely to be very rare indeed. A risk of causing actionable personal injury will weigh very heavily against the public interest in making a disclosure. But in any case in which Departments are considering the possibility in such circumstances that the balance of the public interest might come down in favour of disclosure, legal advice should be sought.
2.6 Considering, and management of, the risks involved may well entail consultation with those most likely to be affected, or their representatives, more generally.
2.7 The section 38 exemption continues to apply to information contained in historical records held by Departments, i.e. those that are more than 30 years old. As the exemption is not an absolute exemption however, in order to refuse a request under the s38 exemption for information contained in a historical record the Department will need to consult the relevant Minister (see section 65 of the FOIA).