FOIA Section 38 Exemption

Section 38: Health And Safety

Section 38 applies to information whose disclosure would be likely to endanger the physical or mental health or the safety of any individual.

Key points:

• The individual concerned does not have to be identifiable: section 36 can apply where there is a group or class of persons, any or all of whom are likely to have their health or safety endangered by disclosure;
• Section 38 is subject to a public interest balance.

Official Guidance

• Updated Ministry of Justice guidance: http://www.justice.gov.uk/docs/foi-exemption-s38.pdf
• ICO guidance: http://www.ico.gov.uk/upload/documents/library/freedom_of_information/detailed_specialist_guides/awareness_guidance_19_-_health_and_safety.pdf
• Previous DCA Guidance: http://www.dca.gov.uk/foi/guidance/exguide/sec38/index.htm

What the law says

38 Health and safety

(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).

Decision Notices

Many of the ICO and Information Tribunal decision notices relating to this exemption are related to Speed Camera sites and prosecution data. Annual figures can be provided, but not for specific sites.

• Information Tribunal decisions
  • http://www.informationtribunal.gov.uk/Documents/decisions/hemsley_judgment.pdf
  • http://www.informationtribunal.gov.uk/Documents/decisions/Bucks%20Free%20Press%20v%20Information%20Commissioner%20(18%20January%202007).pdf