Health and Safety Exemption in FOIA – When Does it Apply?

In Cruelty Free International v IC and Imperial College London, the First-tier Tribunal (Information Rights) held that the health and safety exemption (s.38) under the Freedom of Information Act 2000 (FOIA) did not lend itself to information relating to the staffing hours at an animal research facility and for this reason the information must be disclosed.

The appellant, Cruelty Free International (CFI), was a charity campaigning against animal experimentation and had requested information about staffing hours at an animal research facility at Imperial College London (ICL). This was following an inquiry which had recommended an increase in out of hours staffing at the facility to provide a greater level of care to the animals as there had been indications of a poor living environment for the animals.

ICL did not agree to disclose the information as it relied on the health and safety exemption, and it also stated that if this information was available to animal rights activists this could cause mental or physical distress to the health of staff. As a result of this being upheld on review and by the Information Commissioner in his decision notice, CFI appealed to the FTT(IR) which granted the appeal in confirming that the health and safety exemption was not engaged and ordered the requested information to be disclosed.

In its ruling, the FTT(IR) held that the risk of unauthorised entry and unexpected confrontation was not justified in the evidence. It was public knowledge that care staff were not present all the time and disclosing this information would not necessarily inform an intruder when researchers or security staff were present. Furthermore, ICL had security arrangements in place and the risk of violent animal extremism was very low.

The likely danger to ICL employees’ mental health was described as being mostly speculative as there was no sufficient evidence present to justify it. This is an important decision in that a public authority is required to justify its reliance on any exemption and particularly with qualified exemptions it is required to demonstrate why it is in the public interest not to disclose the information, which ICL was not able to do. This decision also explains the standard of evidence that will be accepted in correlation with disclosure and health and safety concerns when a party is attempting to rely on the health and safety exemption under FOIA.

Forbes Solicitors regularly provide advice to a range of public authorities in relation to the applicability of FOIA and related exemptions, as well as advice in relation to the Data Protection Act 1998, the Environmental Information Regulations and the Privacy and Electronic Communications Regulations. If you have any questions, please contact Daniel Milnes.

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