Health and Safety Exemption to FOI

What is the health and safety exemption to FOI?

The Freedom of Information Act 2000 is a potent tool for citizens seeking access to information held by public authorities. However, within this framework, certain exemptions are in place to protect sensitive data. One such exemption is Section 38, which is specifically designed to safeguard information related to health and safety. In this comprehensive article, we’ll delve deep into Section 38, exploring its scope, its significance, and its impact.

• Introduction to Section 38 Exemption

  • What Does the Act Say?

• What Does This Mean?

  • Endanger versus Prejudice

  • Would or Would Be Likely To

• Case Study

• The Public Interest Test

• Health and Safety Exemption: Factors to Consider

• Unhappy Requestors

• Conclusion: Health and Safety Exemption to FOI

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Introduction to Section 38 Exemption

Before we dive into the specifics, it’s essential to understand the fundamentals of Section 38. This exemption is one of the essential pillars of the Freedom of Information Act, ensuring that certain information is protected from disclosure, especially when health and safety concerns are paramount.

The health and safety exemption to disclosure is an example of a public interest exemption, where the public interest arguments for an against disclosure need to be weighed up before a decision is made. You can read more about public interest exemptions here.

What Does the Act Say?

Section 38 of the Freedom of Information Act says:

“(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).”

What Does This Mean?

This exemption clearly is not limited to health and safety as we might think of it in the workplace. It doesn’t just refer to things like display screen assessments and occupational health screening.

Instead it means information that could harm the health and/or safety of any person.

Endanger versus Prejudice

It is important to note the use of the word endanger rather than prejudice. There has to be a realistic prospect of disclosure either causing harm or making existing harm worse.

Section 38 of the Freedom of Information Act 2000 (FOIA) exempts information from disclosure if its disclosure would, or would be likely to, endanger the physical or mental health of any individual. This exemption is designed to protect people from harm and to ensure that their privacy is respected.

Would or Would Be Likely To

What does would or would be likely to mean?

It means that there has to be a reasonable change of adverse events occurring or being made worse. A public authority has to consider the harm that might happen, and the chance of it happening, when deciding if to withhold information.

Case Study

We supported an NHS Trust deal with a request for copies of maternal death reports. These are reports into investigations into the death of a mother during or shortly after giving birth.

The Trust was concerned about releasing these reports because they contained personal information that could not be effectively anonymised, such as underlying health conditions, social circumstances, or lifestyle factors that may have contributed to the deaths.

The Data Protection Act did not apply because it only applies to living people. However, we felt that releasing the reports into the public domain could cause severe distress to the families of the deceased to the extent that is would be likely to endanger mental health. This is particularly true of the children involved. Overall the degree of harm led us to conclude it was more in the public interest to withhold the requested information.

The requestor did complain to the Information Commissioner, who concluded we had acted appropriately.

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The Public Interest Test

The exemption is qualified by the public interest test. This means that a public authority must weigh the public interest in maintaining the exemption against the public interest in disclosure. If the public interest in disclosure outweighs the public interest in maintaining the exemption, then the public authority must release the information.

This can be a difficult balancing act. You can find out more about the public interest test and how it works here.

Here are some examples of how Section 38 has been applied in practice:

• In 2003, the Information Commissioner’s Office (ICO) ruled that the Department for Work and Pensions (DWP) was justified in withholding information about the names and addresses of people who were receiving benefits under the Disability Living Allowance scheme. The ICO found that the release of this information would be likely to endanger the safety of the individuals concerned.

• In 2010, the ICO ruled that the Ministry of Justice (MoJ) was justified in withholding information about the number of prisoners who had been self-harming. The ICO found that the release of this information would be likely to prejudice the prevention of crime.

• In 2012, the ICO ruled that the Department of Health (DoH) was justified in withholding information about the number of children who had been admitted to hospital with eating disorders. The ICO found that the release of this information would be likely to endanger the physical or mental health of the individuals concerned.

These are just a few examples of how Section 38 has been applied in practice. The exemption is a complex and important one, and it is essential for public authorities to strike the right balance between protecting the public interest and protecting the privacy and safety of individuals.

Health and Safety Exemption: Factors to Consider

Here are some additional factors that public authorities may consider when applying Section 38:

• the nature of the requested information – for example, could it lead to people being identified

• The nature and severity of the risk to an individual or group’s health or safety.

• The likelihood that the disclosure of the information would cause harm.

• Any steps that have been or could be taken to mitigate the risk of harm.

• Whether these together outweigh the public interest in disclosing the information.

Public authorities should always err on the side of caution when applying Section 38. If there is any doubt about whether the disclosure of information would endanger the health or safety of an individual, and the public authority can evidence it had identified a material risk of harm, it should consider withholding the information.

Remember, there are things you should not consider, including the requestor’s identity or why they want the information. You must consider the factors above in the context of being disclosed to the world at large.

Unhappy Requestors

When you refuse to disclose information on the bases of section 38, you will need to explain this to the requestor. As part of this you must explain your reasons and inform them of their rights if they are not happy with your response.

These rights come in two forms:

1. requesting an internal review

2. complaining to the Information Commissioner.

You can find out more about internal reviews and how to handle them here.

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Conclusion: Health and Safety Exemption to FOI

Section 38 of the Freedom of Information Act 2000 is a vital exemption designed to safeguard the privacy, mental and physical health, and safety of the wider public. By understanding its scope, its application, and its significance, we can better navigate the complexities of protecting critical information while preserving the right to access information held by public authorities.