Section 39: Health, safety and the environment

When disclosure would endanger the physical or mental health, or safety, of an individual.

Health, safety and the environment#

Section 39 of FOISA contains two unrelated exemptions under one heading. Section 39(1) covers information whose disclosure would endanger someone’s health or safety. Section 39(2) is a technical provision that redirects environmental information requests to the EIR(S) regime. Despite sharing a section number, these exemptions serve different purposes and you need to know which one the authority has cited.

In plain terms#

If the authority cites section 39(1), it’s saying: releasing this information would put someone in danger - physically, mentally, or in terms of their personal safety.

If the authority cites section 39(2), it’s saying: this is environmental information, so we’re handling your request under the Environmental Information (Scotland) Regulations 2004 instead of FOISA. This is not really a refusal - it’s a change of legal route.

Section 39(1) example: You ask a health board for the location of a secure psychiatric unit. The health board refuses under section 39(1), arguing that disclosing the location would endanger the safety of patients and staff.

Section 39(2) example: You ask a council about pollution levels at a local industrial site. The council applies section 39(2) and handles your request under the EIR(S) instead.

The legal detail#

Section 39(1) exempts information whose disclosure would, or would be likely to, endanger the physical or mental health or the safety of an individual. The authority must show a genuine link between disclosure and endangerment. There must be at least a significant probability that health or safety would be endangered - not just a remote or speculative possibility.

Section 39(2) exempts information where the authority is obliged to make it available under the Environmental Information (Scotland) Regulations 2004, or would be so obliged but for an exception in those regulations. This allows authorities to deal with environmental requests solely under the EIR(S) rather than under both regimes.

Absolute or qualified?#

Both exemptions are qualified. The public interest test applies in each case. Even if the authority can demonstrate endangerment under section 39(1), or that the information is environmental under section 39(2), it must still weigh the public interest in disclosure against the interest in withholding.

For section 39(1), the Commissioner has noted a significant public interest in protecting individuals’ health and safety. To date, the Commissioner has not required an authority to disclose information on public interest grounds where genuine endangerment has been established.

For section 39(2), the public interest in maintaining the exemption will almost always outweigh the interest in disclosing under FOISA, because the information should be disclosed under the EIR(S) instead. The point of section 39(2) is to channel environmental requests to the right regime, not to suppress information.

See What can they refuse? for more on how the public interest test works.

How it’s used in practice#

Health and safety - section 39(1)#

This exemption is used sparingly. The authority must identify a specific individual or group whose health or safety would be endangered. A general sense of discomfort or distaste is not enough. The Commissioner has rejected arguments based on the idea that members of the public might be distressed by information - distress alone does not amount to endangerment of mental health.

The wider the group the authority claims would be endangered, the harder it is to sustain the argument. Claiming that an entire community’s mental health would be harmed is a more difficult case than identifying a specific person facing a specific risk.

The Commissioner accepted this exemption where police argued that crime scene photographs from the Dunblane school shootings could endanger the mental health of those directly affected and the wider community. The graphic nature of the images and their direct connection to a traumatic event made the case for endangerment.

In contrast, the Commissioner rejected a claim by Scottish Ministers that disclosing their travel and subsistence details would endanger their safety, finding that the Ministers had not shown that disclosure would actually increase the risk.

Environmental information - section 39(2)#

Section 39(2) is not a barrier to getting information. It is a procedural mechanism. If the authority applies section 39(2), your request should be dealt with under the EIR(S). The exceptions available under the EIR(S) are different from FOISA exemptions, and in some respects the EIR(S) gives you stronger rights - there is a presumption in favour of disclosure, and the definition of environmental information is broad.

If the authority applies section 39(2), check that it has actually handled your request under the EIR(S). If it has applied section 39(2) but not gone on to consider the request under the EIR(S), it has not dealt with your request properly.

How to challenge it#

For section 39(1)#

Ask what specific risk the authority has identified. Who would be endangered, and how? A refusal letter that says only “disclosure would endanger health or safety” without identifying the nature and target of the risk is not sufficient.

Consider whether the risk is genuinely linked to disclosure. Would the information actually enable someone to cause harm, or is the authority speculating about what might happen? The Commissioner requires evidence, not just assertion, of a realistic prospect of endangerment.

For section 39(2)#

Check that the authority has dealt with your request under the EIR(S). If it has just cited section 39(2) without processing your request under the environmental regulations, ask it to do so. The authority must consider your request under both FOISA and the EIR(S) if the information could be environmental.

If you think the information is not environmental, you can argue that section 39(2) does not apply and the request should be handled under FOISA alone. The definition of environmental information in the EIR(S) is broad, covering information about the state of the environment, factors affecting it, and measures designed to protect it.

See What to do if refused for the full process, and Environmental information for more on your rights under the EIR(S).

You can also use our interactive challenge tool for this exemption to work through these questions step by step and draft a review request.

Good to know: Both limbs of section 39 can be applied in perpetuity - there is no time limit. Under section 39(1), the authority can neither confirm nor deny whether it holds the information. This power is not available under section 39(2). If your request involves a mix of environmental and non-environmental information, the authority should apply FOISA to the non-environmental parts and the EIR(S) to the environmental parts.