About this detailed guidance
This guidance discusses section 38, the health and safety exemption of FOIA in detail and is written for use by public authorities. Read it if you have questions not answered in the Guide, or if you need a deeper understanding to help you apply this exemption in practice.
- What exemption is contained in section 38 of FOIA?
- How should we interpret the terms used in the exemption?
- How do we apply section 38(1)(a)?
- How do we apply section 38(1)(b)?
- How do we determine what is in the public domain?
- How do we apply the neither confirm nor deny provisions – section 38(2)?
- How do we consider the balance of the public interest?
Section 38 states that:
(1) Information is exempt information if its disclosure under
this Act would, or would be likely to-
(a) endanger the physical or mental health of any individual, or
(b) endanger the safety of any individual.
(2) The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, have either of the effects mentioned in subsection (1).
Section 38 provides an exemption from disclosing information if it would endanger any individual (including the applicant, the supplier of the information or anyone else). The exemption does not necessarily deal with what are usually thought of as health and safety matters, such as establishing the cause of an accident.
Section 38(1)(a) focuses on endangerment to any individual’s physical or mental health.
Section 38(1)(b) focuses on endangerment to the safety of any individual.
Section 38(2) provides an exemption from the duty to confirm or deny whether information is held if doing so would or would be likely to endanger the physical or mental health or safety of any individual.
These exemptions are subject to the public interest test.
You need to consider whether the requested information would or would be likely to endanger the physical or mental health or safety of any individual. You also need to consider the degree of endangerment that is involved and whether it is significant enough to engage the exemption.
Information involving living individuals is covered by section 40 (personal information). The focus of section 38 is on other information that might pose a risk, if disclosed. This could be information about:
- sites of controversial scientific research where disclosure could lead to sabotage and therefore there would be risks to the physical safety of staff;
- someone who has died (and is therefore not covered by the personal information exemption) where disclosure might endanger the mental health of surviving relatives, particularly if they had been unaware of it;
- an issue where disclosure might have an adverse effect on public health (eg research into the safety of a particular medication);
- any plans or policies relating to the accommodation of individuals, or groups of individuals where disclosure could lead to them being threatened or harassed (eg asylum seekers, ex-offenders); or
- the identity of informers or undercover officers.
In Greg Callus v the Information Commissioner and the Home Office EA/2013/0159, (6 May 2014) the Tribunal decided that the names and ranks of the persons who held certain roles under the Regulation of Investigatory Powers Act (RIPA) 2000, on behalf of the police forces of England and Wales, was exempt information under section 38.
The Tribunal accepted that the disclosure of names may create “a risk of Single Points of Contact (SPoCs) being approached by criminals or others intent on undermining the effectiveness of the RIPA regime”.
Although they felt that there was less evidence to support the Home Office’s claim that such an approach may be accompanied by actual or threatened violence they said that:
“…the conclusion they feared, however, is one that would flow logically from initiating communications designed to corrupt the relevant official. It is therefore justifiable to regard it is a result that would be likely to flow from the disclosure of names and to conclude that the exemption is engaged.”
The Tribunal further concluded that the public interest in maintaining the exemption would again outweigh the public interest in disclosure, given the very limited public interest in disclosure and the risk of physical harm to individual SPoCs which may, for example, be caused by a refusal to co-operate.
In section 38 the word “endanger” is used rather than the word “prejudice”.
In light of the Tribunal decision below, the Commissioner has now concluded that the prejudice test that is used in many FOIA exemptions cannot simply be considered as a substitute for the word “endanger”.
Andrew Lownie v the Information Commissioner and The National Archives and The Foreign and Commonwealth Office EA/2017/0087 (12 July 2018) concerned a request for a closed file held by the TNA which was part of the collection relating to the Guy Burgess and Donald Maclean spy ring.
The TNA refused to disclose the requested information, relying on section 38(1) and section 24(1). In FS50654519, the Commissioner upheld the TNA’s refusal, agreeing that section 38(1) was engaged and that the public interest favoured non-disclosure. The Commissioner took the view that there was a risk of mental distress resulting from disclosure and that this risk was substantially more than remote.
During the Tribunal TNA/FCO argued that there is a real, significant and specific risk that disclosure of the contents of the vetting file would cause upset and distress to the family of the subject of the file and potentially more serious health symptoms. A consultant psychiatrist provided expert evidence but the Tribunal warned that the value of that evidence was limited by his inability to consult with any of the persons who might be affected.
The Tribunal considered the word “endanger” and whether the prejudice test used in other FOI exemptions could be substituted for it. In PETA v IC & University of Oxford EA/2009/0076 (13 April 2010) the Tribunal had said, “All parties agreed that in the context of section 38 ‘endangering’ and ‘prejudicing’ came to the same thing and that consequently the Tribunal could read across the existing body of case law”. The Tribunal in Lownie diverged from this opinion. During the course of its deliberations it rejected the Commissioner’s approach, preferring the view expressed in the
British Union for the Abolition of Vivisection V IC and Newcastle University, EA/2010/0064 (11 November 2011) where it was stated that Parliament had chosen to use the word “endanger” and did not refer either to “injury” or to “prejudice”:
“We note that the assimilation of ‘endanger’ to ‘prejudice’ in PETA was not a reasoned conclusion but was based on agreement between the three parties involved in that case. The ‘prejudice’ test is expressly included in a number of FOIA exemptions. In our view, if Parliament had intended s.38 to depend upon the same test as those other exemptions, it would have used the same language. It did not, but instead chose to use different language in s.38. We should follow the Parliamentary intention. In our view, attempting to assimilate the two tests merely muddies the waters. For the purposes of s.38 we must apply the words of s.38, not the words of different exemptions.”
The use of the phrase “any individual” in section 38 includes any specific individuals, any member of the public, or groups within society.
In order to engage this exemption you must demonstrate that there is a causal link between the endangerment and disclosure of the information.
You must also show that disclosure would or would be likely to have a detrimental effect on the physical or mental health of any individual. The effect cannot be trivial or insignificant. In the context of section 38, even if the risk falls short of being more probable than not, it needs to be such that there may very well be endangerment.
The Tribunal in Lownie also considered the extent of distress necessary to engage section 38. The Tribunal gave an example of what it described as the muddying of the waters due to the assimilation of “endanger” to “prejudice”. In its view this had led to a misunderstanding of the phrase “would or would be likely to”. The Tribunal described the first part of the phrase ‘would’ as referring to something more likely than not or a greater than 50% probability. Referring to the ICO’s previous guidance, the Tribunal concluded that assimilating the prejudice test may have contributed to the second part of the phrase “would be likely to” being watered down to require only “a real and significant likelihood". In the Tribunal’s judgment the “appropriate explanation of the degree of likelihood that is meant by ‘would be likely to’ in section 38” is based on previous precedent. Their view was derived from R(Lord) v Home Secretary  EWCH 2073 (Admin). There needed to be “‘a very significant and weighty chance’”, a “‘real risk’” was not enough.
However, the question of the degree of endangerment is not a straightforward one. For example, the Upper Tribunal in Keane v (1) Information Commissioner (2) Home Office (3) MPS UKUT 0461 (AAC).The appeal had arisen from a First-tier Tribunal decision about whether certain information in a file in the National Archives which concerned the activities of paid informants against Irish secret societies 1890-1910 should be released under FOIA. The file contained their names.
Although it was the Upper Tribunal’s role only to make a judgment on whether the public interest balancing test had been carried out
by the First-tier Tribunal, it nevertheless expressed the following view:
“My concern in this regard is the evidential basis for the majority’s conclusion that section 38(1) was engaged. Obviously I did not hear the witnesses the Tribunal heard. However, I have read their open and closed evidence. I have also read (several times) the Tribunal’s account of their evidence. I am struggling to see any basis on which the Tribunal could properly reach a finding that disclosure would endanger the physical or mental health of any individual or endanger the safety of any individual. I am also in a similar difficulty in identifying any basis on which the Tribunal could be satisfied that disclosure would be likely to result in either type of harm. At best the majority’s findings would appear to justify a conclusion that disclosure might just conceivably lead to such a harm. Given that “likely to” in this context means a real and significant risk, albeit a risk that may well fall short of being more probable than not...the majority’s conclusion seems at best problematic.”
Endangering physical health usually means an adverse physical impact and often involves medical matters. This can relate to individuals or groups.
A health authority is asked to disclose details of research that it has commissioned into the safety of a particular medication.
Disclosure could endanger physical health if the disclosure causes people to stop taking the medication.
The health authority should balance this against the overall public interest in disclosing the information to enable wider public debate about how health authorities ensure the safety of medicines that are prescribed to the public.
Endangering mental health implies that the disclosure of information might lead to a psychological disorder or make mental illness worse. This means that it must have a greater impact than causing upset and distress.
You may find it difficult to demonstrate a danger to mental health without obtaining an expert opinion confirming that the disclosure of the information would be likely to endanger the mental health of the applicant or any other individual. However, the ICO considers that clinical evidence of a psychiatric condition is not always necessary.
The Tribunal in Lownie rejected the Commissioner’s position that the necessary probability of “distress” to living relatives would be sufficient to meet the requirements of section 38, finding that:
“Whilst distress can be a trigger leading to mental ill-health, we do not consider that distress in itself should be equated with mental ill-health for the purposes of s.38. A healthy or unhealthy person may experience distress without suffering any, or any additional mental ill-health” (paragraph 49).
The Tribunal stated that a risk was not the same as a specific danger. In finding that the degree of probability was insufficient, the Tribunal judged that section 38 was not engaged, despite dismissing the appeal on other grounds.
Establishing a causal link that demonstrates a degree of endangerment that is sufficient to engage the exemption can require you to make a complex assessment of the evidence.
Transport for London v Information Commissioner and Neil Hood EA/2018/0234 (1 August 2019) considered an appeal where TFL had disclosed relevant information but withheld details of “person under a train” incidents split by individual stations. “Person under a train” incidents include a high percentage of suicides.
The Commissioner had decided that the section 38 exemption was not engaged because the causal link between potential disclosure and a “very significant and weighty chance” of endangerment had not been made.
The Tribunal disagreed. Having concluded that section 38 was engaged because there was a risk of suicide should the information be disclosed, the Tribunal considered the public interest. Its decision was that the public interest in transparency was “clearly outweighed by the significant harms caused by the risk of an increase in suicide attempts”.
In order to engage this exemption you must demonstrate that there is a causal link between the endangerment and disclosure of the information.
You must also show that disclosure would or would be likely to endanger the safety of any individual. The effect cannot be trivial or insignificant.
Endangering safety is usually connected to the risk of accident and the protection of individuals.
Information requested about the number of speeding tickets issued at a particular camera site could result in more drivers speeding at that site because they have deduced that enforcement is less likely at that location. This could increase the risk of a serious accident and endanger the safety of individuals.
Some people or groups in society are particularly vulnerable and their safety may be more easily endangered than that of others. For example information about individuals, or groups involved in controversial work, such as:
- animal experimentation;
- weapons research;
- abortion treatment; or
- those operating covertly, such as police informers or members of the security services.
Information that could endanger an individual’s safety could also endanger their mental or physical health. If so, you can rely upon both parts of the exemption.
You need to consider whether withholding certain categories of information is appropriate and whether endangerment would or would be likely to result if you disclosed it.
In the wake of the Grenfell Fire in 2017, then-Information Commissioner Elizabeth Denham wrote the following in her blog:
“…in an era when people are increasingly looking for answers, protecting this right to Freedom of Information (FOI) is a crucial part of my job.
There is likely to be a compelling public interest in releasing fire safety information as part of a Freedom of Information request. And I know there are councils and other public bodies that are meeting these requests…But I am encouraging them to go further.
Unless there is a good reason not to, I urge public organisations holding relevant fire risk assessments and other fire safety information to consider publishing these records proactively.”
Another issue you may need to take into account is whether the same or similar information is already available in the public domain. You have to consider whether the consequences of disclosure are therefore more or less serious, in each particular case.
The phrase “public domain” means that the information is available to the public. The multiple sources of information now accessible on the internet mean that what is in the public domain is harder to determine. There is much in the public domain that is speculative and this is acknowledged in The National Archives access to historical records guide:
“In the criminal field there are several websites and books that speculate on the detail of crimes and the motives of those involved: this does not warrant the release of all the circumstances of a crime including those details that may damage the mental health of a victim’s immediate family (scene of crime photographs) or details of victims who did not press charges.”
On the other hand, the passage of time and the information that is already in the public domain may mean that applying section 38 is inappropriate.
In 1952 a Cardiff shopkeeper called Lily Volpert was murdered. Mahmood Hussein Mattan was tried for her murder and convicted. He was refused leave to appeal and was hanged. In 1969 further evidence came to light and his conviction was eventually quashed, but not until 1998.
The Tribunal in Dr Christopher Phillips v IC & The National Archives, EA/2012/0141, (15 February 2013) considered whether the release of graphic descriptions of the murder and the handling of the body could be deeply upsetting to family members of the victim 60 years afterwards. The TNA had withheld this information under section 38 and the Commissioner had agreed that it “would be likely to endanger…mental health”.
The Tribunal concluded that section 38 was not engaged. It had been provided with no objective medical evidence. The repeated times the evidence had resurfaced in court proceedings, newspaper investigations and a book went against the argument that those whose mental health may be endangered had not been alerted to the details of the case. These arguments did not stand up to the “test of reality and proportionality”.
Further guidance on information in the public domain is available on our website.
Section 1(1)(a) of FOIA requires you to inform the requester whether you hold information of the description specified in the request. This is known as the duty to confirm or deny.
Section 38(2) removes the duty to confirm or deny:
“The duty to confirm or deny does not arise if, or to the extent that, compliance with section 1(1)(a) would, or would be likely to, have either of the effects mentioned in subsection (1).”
Therefore you need to consider whether simply confirming or denying that you hold information would endanger the health or safety of any individual.
A public authority considering converting hostels under its management into residential centres for convicted offenders may wish neither to confirm nor deny that it holds such information.
The safety of existing residents may be endangered if it disclosed the information that it was considering hostels for conversion. In other words, even confirming or denying that they held such information may endanger public safety, as any or all hostels managed by the public authority may be vulnerable to attack.
If you are seeking to claim section 38(2) you must be able to explain how confirming or denying that you hold information would be likely to endanger the physical or mental health or safety of an individual as defined in section 38(1)(a) and (b).
ICO decision notice FS50521978 concerned a request for information from Greater Manchester Police (GMP) about the discovery of a body in November 2011. GMP disclosed certain information but refused to confirm or deny whether it held other information under section 38(2).
The information in question was particularly sensitive. GMP considered that mere confirmation or denial would be upsetting to relatives of the individual in question, to the extent that it would be likely to endanger their mental health.
In recognition of the sensitive subject matter, the Commissioner accepted GMP’s reasoning and agreed that the exemption from the duty to confirm or deny provided by section 38(2) was engaged.
Further advice on these provisions in FOIA is available in our separate guidance about when to refuse to confirm or deny information is held.
Section 38 is a qualified exemption. This means that, even if the information requested is exempt from disclosure, you must go on to consider and then decide whether the public interest in maintaining the exemption outweighs the public interest in its disclosure.
In the case of section 38 this involves weighing up the risks to the health and safety of an individual or group against the public interest in disclosure, in all the circumstances of the case. You must apply the test on a case-by-case basis.
The assessment of endangerment is relevant to the public interest test. Note that the choice between “would” and “would be likely” is important because it affects the balance of factors in the public interest test. The greater the likely endangerment to the physical or mental health or safety of any individual, the stronger the public interest in not disclosing the information requested.
ICO decision notice FS50787185 concerned a request for information relating to the child grooming scandal in Rotherham, including details of payments made to the victims.
South Yorkshire Police provided some information within the scope of the request but refused to provide the remainder, citing sections 38(1)(health and safety) and 40(2)(personal information).
The Commissioner’s decision was that South Yorkshire Police was entitled to rely on section 38(1)(a) in relation to that information. They acknowledged the public interest in openness, transparency and accountability to allow members of the public to have access to what was a high profile case that had received significant coverage. The Commissioner also accepted that disclosure would enable the public to understand more closely how much the victims were paid and the reasons for those payments.
However, the Commissioner considered that there was a stronger public interest argument in withholding the information than disclosing it. The reason for this lay in safeguarding the mental health of the victims of child sexual exploitation and their families who might expect to have begun the process of closure rather than to have these sensitive matters reopened.
FOIA itself does not list the factors that would favour disclosure however these include:
- furthering the understanding and participation in the public debate of issues of the day;
- promoting accountability and transparency by public authorities for decisions taken by them;
- promoting accountability and transparency in the spending of public money;
- allowing individuals, companies and other bodies to understand decisions made by public authorities which affect their lives;
- bringing to light information affecting public health and safety; and
- circumstances where disclosing information would reduce potential danger to people by making them aware of various risks and enabling them to take appropriate action.
Both the content and context of the information is relevant when you consider this test and determine the appropriate weight to give to the benefits and detrimental effects of disclosure.
There are occasions when disclosure could have both a positive and negative impact on public health. Information on an established vaccine may discourage some people from having an injection. This may protect a few people who could have a bad reaction to the vaccine. However, it would undermine a national immunisation campaign.
Factors that favour withholding information include the disclosure of:
- speculative or incomplete information that could mislead the general public and cause them to fail to act or act against their own interests;
- information that would undermine the functioning of a system established to protect public health or safety (eg speed cameras, drug trials); or
- information that would provide intelligence allowing known individuals to be targeted.
Once section 38 is engaged and you have established that there is a real and actual danger to someone’s health and safety, it is difficult to find in favour of disclosure.
This was borne out by the Tribunal decision in British Union for the Abolition of Vivisection vs Information Commissioner and Newcastle University EA/2010/0064, (10 November 2010).
The Tribunal said that “the public interest in maintaining the section 38(1) exemption, where it is engaged, is also strong. Self-evidently, there would need to be very weighty countervailing considerations to outweigh a risk to health and safety which was of sufficient severity to engage section 38(1).”
You can of course always consider whether there are any steps you can take to mitigate or manage the risk that disclosure would cause.
You should consider whether there is an interaction between section 38 and other exemptions in FOIA. In each case you need to identify the most appropriate exemption or exemptions that apply to the information requested.
Other relevant exemptions that may interact with section 38 include:
- Section 40 - requests may include personal information that would be exempt under section 40, for example disclosure of information that could assist terrorists targeting a specific individual or would identify ‘whistle-blowers’;
- Section 30 and section 31 (investigations and law enforcement) – when information relates to an investigation or proceedings or when the disclosure might prejudice matters such as the administration of justice, prosecution of offenders or the prevention or detection of crime; and
- Section 32 (court records) – restrictions on the disclosure of information contained in court records may be relevant to the protection of the health and safety of individuals, for example victims and witnesses.
You may also want to read our detailed explanation of the prejudice test, when to refuse to confirm or deny information is held, and our guidance on information in the public domain.
This guidance relates only to FOIA. If the information is environmental, you have to consider exceptions under the EIR.
There is other legislation which may be relevant to section 38 and that you may wish to consider when applying it:
- Rehabilitation of Offenders Act 1974
- Health and Safety at Work Act 1974 (section 28)
- Human Rights Act 1998
- Equality Act 2000
- Data Protection Act 2018 (Schedule 3, Part 2, paragraph 5)