FOI/EIR FOI Section/Regulation s38 Issue The endangerment test under s38
Line to take:
  • When applying s38, to assess endangerment the same test as for prejudice in other exemptions should be used (see LTT13).
  • To establish a danger to mental health under s38, it must be demonstrated that the disclosure of information would or would be likely to endanger mental health, to an extent greater than mere stress or worry.
Further Information:

The Commissioner considers that the term “endanger” under s38 should be interpreted in the same way as the term “prejudice” in other FOIA exemptions. In order to engage this exemption therefore the public authority must demonstrate that disclosure of the information in question would or would be likely to have a detrimental effect upon the physical or mental health of any individual, or the safety of any individual, that is more than trivial or insignificant.

His view was confirmed by the Tribunal in PETA v ICO & University of Oxford (EA/2009/0076), where it went on to apply the prejudice test it had used in Hogan and Oxford City Council v IC (EA2005/0026 and 0030). The principles set out in LTT13 on the prejudice test should therefore also be followed when assessing endangerment under s38.

To demonstrate a danger to mental health under s38, the Commissioner considers that clinical evidence of a psychiatric condition is not necessary. The Tribunal confirmed this view in the PETA case.  It also explained however that the effect of the disclosure upon any individual’s mental health must “go beyond stress or worry”.

Source Details

PETA / University of Oxford (13 April 2010)

Hogan / Oxford City Council (17 October 2006)

Related Lines to Take
Related Documents
EA/2009/0076 (PETA); EA/2005/0026 and 0030 (Hogan)
Contact VA
Date 26/08/2010 Policy Reference