Section 39 - Health, safety and the environment

What this exemption means#

Section 39 contains two unrelated exemptions:

• Section 39(1) - disclosure would, or would be likely to, endanger the physical or mental health or safety of an individual. This covers genuine risks of harm to identifiable people.

• Section 39(2) - the information is environmental information that must be handled under the Environmental Information (Scotland) Regulations 2004 (EIRs). This is a technical exemption that routes environmental requests to the EIR regime.

Both exemptions are qualified - the public interest test applies.

What the authority must show#

For section 39(1) - health and safety#

The authority must:

1. Identify whose health or safety would be endangered - a specific individual or identifiable group
2. Explain the specific danger that disclosure would cause - physical injury, illness, mental health harm, or a threat to safety
3. Show the danger is likely - there must be at least a significant probability, not a remote or hypothetical possibility
4. Show a genuine link between disclosure and the endangerment
5. Carry out and explain a public interest test

For section 39(2) - environmental information#

The authority must show:

1. The information is environmental information as defined in the EIRs
2. The authority is obliged to make it available under the EIRs (or would be but for an EIR exception)

If section 39(2) applies, the authority should still handle your request - but under the EIRs rather than FOISA. This means the EIR exceptions and the EIRs’ stronger presumption of disclosure apply instead.

Things to check#

• For section 39(1) - did they explain the specific danger? The authority must show exactly how disclosure would endanger someone’s health or safety. A vague claim that the information is “sensitive” or might cause distress is not enough. The exemption should not be used to withhold information simply because an authority considers it distasteful.

• For section 39(1) - is the danger realistic? There must be a genuine, realistic prospect of health or safety being endangered. The Commissioner requires evidence that such an eventuality has a realistic prospect of occurring - not just that it is within the bounds of possibility.

• For section 39(1) - could withholding the information be more dangerous than disclosing it? Sometimes the public interest strongly favours disclosure of health and safety information. If the information reveals risks to public health or safety, withholding it may cause more harm than releasing it. The public interest in knowing about dangers is often very strong.

• For section 39(1) - who is at risk? The authority must identify specific individuals or an identifiable group. The wider the group claimed to be at risk, the harder it is to show that endangerment is likely. A general claim that “someone” might be endangered is not sufficient.

• For section 39(2) - is this actually environmental information? The definition of environmental information in the EIRs is very broad. It covers: the state of the environment (air, water, land, etc.); factors affecting the environment (emissions, waste, energy, noise); measures affecting the environment (policies, plans, legislation); and the state of human health as affected by environmental conditions. If the authority has applied section 39(2), check whether the information really is environmental. If it is, your request should be handled under the EIRs, which have a stronger presumption of disclosure.

• If section 39(2) is applied - did they still handle the request under the EIRs? Section 39(2) does not mean the authority can simply refuse your request. It means the request must be considered under the EIRs instead. The authority should have explained this and dealt with your request under the EIR regime. If they simply refused without considering the EIRs, that is an error.

Use the interactive tool#

Answer the questions below to check whether section 39 has been properly applied to your request.