Health, Safety and the Environment

Guidance on the use of FOISA section 39

Section 39 of the Freedom of Information (Scotland) Act 2002 (FOISA) contains two unrelated exemptions. Information may be withheld if:

  • disclosure would, or would be likely to, endanger the physical or mental health or safety of an individual (section 39(1)); or
  • it is environmental information and the public authority is obliged to make it available in accordance with the Environmental Information (Scotland) Regulations 2004 (the EIRs). This is a technical exemption which allows public authorities to respond to requests for environmental information under the EIRs without considering the request under FOISA.

Both of the exemptions are subject to the public interest test. This means that, even if an exemption applies, the information must be disclosed unless the public interest in withholding the information outweighs the public interest in disclosing it.

The exemptions in section 39 last in perpetuity. This means they can be applied to information regardless of how old it is.

Where the exemption in section 39(1) applies, a public authority can refuse to confirm or deny whether it holds the information, provided the authority is satisfied that revealing whether the information exists or is held would be contrary to the public interest (section 18 of FOISA). This provision does not apply to the exemption in section 39(2).

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Section 39 exemption briefing

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