E A Lee v Information Commissioner & Anor [2026] UKFTT 1194 (GRC)

[2026] UKFTT 01194 (GRC)

Case Reference: FT/EA/2025/0197

First-tier Tribunal

General Regulatory Chamber

Date 18 August 2026

Information Rights

Decided without a hearing

Before

JUDGE HAZEL OLIVER

MEMBER KERRY PEPPERELL

MEMBER EMMA YATES

Between

E A LEEAppellant

INFORMATION COMMISSIONERRespondent

DEPARTMENT FOR HEALTH AND SOCIAL CARERespondent

Decision: The appeal is Dismissed

REASONS

Background to Appeal

[1]This appeal is against a decision of the Information Commissioner (the “Commissioner”) dated 24 April 2025 (IC-347701-M6Y4, the “Decision Notice”). The appeal relates to the application of the Freedom of Information Act 2000 (“FOIA”). It concerns statistical information about suicides requested from the Department for Health and Social Care (“DHSC”).

[2]The parties opted for paper determination of the appeal. The Tribunal is satisfied that it can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended).

[3]On 19 July 2024, the Appellant wrote to DHSC and requested the following information (the “Request”):

“You published “Review of suicides and gender dysphoria at the Tavistock and Portman NHS Foundation Trust: independent report” on 19 July 2024. In the report Professor Appleby wrote, “In this period of 6 years the data show a total of 12 suicides: 6 in the under 18s, 6 in those 18 and above. In the 3 years leading up to 2020-21, there were 5 suicides, compared to 7 in the 3 years after. This is essentially no difference, taking account of expected fluctuations in small numbers, and would not reach statistical significance. In the under 18s specifically, there were 3 suicides before and 3 after 2020-21.”

And he wrote, “the figures are for ‘NHS years’, April to March, so the timing of the High Court judgment does not fall neatly between years.” In relation to his summary, please let me know:

In relation to his summary, please let me know:

[1]Out of the 12 total suicides, how many occurred before April 2020?

[2]Out of the 12 total suicides, how many occurred on or after April 2020?

[3]Out of the 6 suicides involving individuals under 18, how many occurred before April 2020? 4. Out of the 6 suicides involving individuals under 18, how many occurred on or after April 2020?

[5]Is the numeric answer to (3) greater than the answer to (4)?”

[4]The background to this request relates to the work of the Tavistock and Portman NHS Trust (the “Trust”). This is a controversial topic. The Trust ran a gender identity clinic, the Gender Identity Development Service, and offered a service for patients under the age of 18. The Trust would offer the option of puberty blockers to some young people under 18. In December 2020, the High Court ruled that children under 16 could not give informed consent to such treatment (Bell v The Tavistock and Portman NHS Foundation Trust

[2020] EWHC 3274

). The Trust stopped referring patients for puberty blockers. The High Court’s decision was reversed by the Court of Appeal in September 2021, but the Trust did not re-start referrals for puberty blockers. The prescribing of puberty blockers was banned in 2024.

[5]Allegations were made about the rates of suicide among the Trust’s patients, particularly young people, as a result of the Bell decision and the Trust’s change of practice relating to puberty blockers. The Government asked Professor Louis Appleby to review the data. The Review reported the figures for six NHS years, three before and three after 2020/21, describing them as disclosing “essentially no difference, taking account of expected fluctuations in small numbers, and would not reach statistical significance”. The Appellant’s Request is asking for these figures to be broken down in a different way.

[6]DHSC responded on 16 August 2024 and said this information was not held. Following an internal review, they confirmed that the information was held, but was exempt from disclosure under section 38(1) FOIA (disclosure of information would, or would be likely to, endanger the physical or mental health, or the safety, of any individual).

[7]The Appellant complained to the Commissioner on 29 November 2024. The Commissioner decided:a. Section 38 FOIA was engaged. This was based on publication in the requested format causing an increased risk of suicide. The Commissioner rejected DHSC’s suggestion that disclosure would also endanger the mental health of families of the deceased.

b. The balance of the public interest favoured maintaining the exemption, based on the severe consequences of the risk and the fact the group most likely to be affected already includes a large number of people in vulnerable situations.

The Appeal and Responses

[8]The Appellant appealed on 21 June 2025. The grounds of appeal are that the Commissioner was wrong to find that disclosure would give rise to a risk that was ‘real, actual or of substance’ of increased suicide and/or suicide attempts and accordingly, he was wrong to find that section 38 FOIA was engaged. The Appellant does not challenge the findings on the public interest balance. The two main criticisms of the Decision Notice are:a. The Commissioner wrongly failed to apply the factors that he had (rightly) relied on in rejecting DHSC’s first argument concerning distress to families.

b. The Commissioner applied the Samaritans’ Guidelines in an over-literal fashion, and wrongly equated any breach of the Guidelines with increased risk of suicide.

[9]The Commissioner’s response maintains that the Decision Notice was correct, and the risks of endangerment are causally high and of such significance as to engage sections 38(1)(a) and (b). The Commissioner says it’s clear that comparing a two-year period with a four-year period is likely to result in different statistical presentation, and the appeal grounds do not address the effect of disclosure on young people and groups already vulnerable to suicide. The Commissioner also denies that he heeded the Samaritans guidance in an over-literal fashion, but says that one must not discount what they say about responsible media reporting about suicides.

[10]DHSC was joined as a party to the proceedings. DHSC’s response sets out considerable background, and addresses specific arguments from the appeal grounds (as considered in the discussion below). Overall DHSC says that the Commissioner’s decision should be upheld. DHSC also argues that section 38(1)(a) applies to the risk to families of those who had taken their own lives.

[11]The Appellant submitted a reply to both responses and we have considered the relevant points in the discussion below.

Applicable law

[12]Applicable law The relevant provisions of FOIA are as follows. 1 General right of access to information held by public authorities. (1). Any person making a request for information to a public authority is entitled— (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and (b). if that is the case, to have that information communicated to him. ……

[2]Effect of the exemptions in Part II. ……. (2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply if or to the extent that—(a) the information is exempt information by virtue of a provision conferring absolute exemption, or

(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. ……..

[38]Health and safety(1) Information is exempt information if its disclosure would or would be likely to - (a). endanger the physical or mental health of any individual, or (b). endanger the safety of any individual. ……. 58 Determination of appeals (1) If on an appeal under section 57 the Tribunal considers— (a). that the notice against which the appeal is brought is not in accordance with the law, or (b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently, the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.

[13]Section 38 is a qualified exemption, meaning there is a duty to disclose unless the public interest in maintaining the exemption outweighs the public interest in disclosure.

[14]The use of the word “endanger” rather than “prejudice” in section 38 is deliberate, and the two should not be elided. In this context, “would” means “more likely than not”, and “would be likely to” means a “very significant and weighty chance” and something that “may very well” occur – a real risk alone is not sufficient. A relevant previous decision of the First-Tier Tribunal is Lownie v Information Commissioner & The National Archives & The Foreign and Commonwealth Office EA/2017/0087, which was based in part on an analysis of the appellate decision in R (Lord) v Home Secretary

[2003] EWHC 2073 (Admin)

Issues and evidence

[15]Issues and evidence The single issue in this appeal is whether the exemption in section 38 FOIA is engaged by the withheld information:a. Would disclosure of the withheld information endanger the physical or mental health of any individual, or would it be likely to do so? (section 38(1)(a)).

b. Would disclosure of the withheld information endanger the safety of any individual, or would it be likely to do so? (section 38(1)(b)).

c. If so, does the public interest in maintaining the exemption outweigh the public interest in disclosing the information?

[16]By way of evidence and submissions we had the following, all of which we have taken into account in making our decision: c. A witness statement from Jennifer Benjamin, Deputy Director for the NHS Reform Bill and Gender Services Policy. d. A closed bundle of documents.

[17]

a. An agreed bundle of open documents of 348 pages.

b. A witness statement from the Appellant (in the bundle). The ICO and DHSC agreed a gist of the evidence in the closed bundle. In addition to the withheld information, the gist states that the closed bundle contains the following evidence in support of the exemption: a. Briefings and correspondence providing further reasons why the withheld information should not be disclosed; b. An unredacted version of DHSC’s submissions to the Commissioner during the investigation dated 11 April 2025 (the redacted version is currently in open bundle B106-114).

c. An unredacted version of DHSC’s Witness Statement of Jennifer Benjamin (the redacted version is currently in open bundle E250-E259) plus Exhibit JB1.

d. Email from GLD to the Tribunal dated 2 December 2025 providing further rationale for Rule 14 application.

[18]The Appellant raised some concerns about the closed material in additional submissions dated 18 February 2026. The Tribunal panel confirms that it has not found it necessary to take the material in item 15(a) above into account in making our decision. We are satisfied that the gist of the other items is adequate as disclosing further information about the redacted content would defeat the purpose of the appeal.

Discussion and Conclusions

[19]Discussion and Conclusions In accordance with section 58 of FOIA, our role is to consider whether the Commissioner’s Decision Notice was in accordance with the law. As set out in section 58(2), we may review any finding of fact on which the Decision Notice was based. This means that we can review all of the evidence provided to us and make our own decision. We deal in turn with the issues.

[20]We have started with section 38(1)(b), as this was the basis for the Commissioner’s decision - would disclosure of the withheld information endanger the safety of any individual, or would it be likely to do so? We have considered the Appellant’s arguments and the response from DHSC.

[21]The Appellant says that the Request is for data that has already been published, only split differently, and the more granular data would be the older data – this cannot present any greater risk than what has already been published. The Appellant also says that the debate on the withdrawal of gender-affirming treatment is continuing, and release of the data is likely to have only a small marginal impact on the debate.

[22]DHSC maintains that greater granularity brings a smaller sample into being, which is easier to identify and associate with. DHSC also makes the point that Bell was a linchpin moment in the debate, and anything that acts to heighten the risk of misused or misapplied statistics revolving around that moment is a real factor of concern. The Commissioner says that the Appellant has not addressed the effect of disclosing the withheld information on young people and those already vulnerable to suicide.

[23]The Appellant’s reply asked whether the Tribunal has received and considered the requested data. We can confirm that we have considered the data as part of the closed material. This has informed our decision. We accept that presentation of the data in the way requested by the Appellant would inevitably lead to a smaller sample of data being disclosed. This would risk individuals identifying and associating with the data in a different way. We also agree that the changing of the cutoff date to April 2020 will potentially align the data more closely with the Bell decision (although not exactly, as the decision was in December 2020). This would increase the risk of the statistics being misunderstood or misused in public discussion, causing a heightened risk of suicide by vulnerable young people in particular. The Closed Annex to this decision explains the relevance of the closed material to this decision.

[24]The Appellant’s second main argument is that the Samaritans media guidelines were applied in an overly literal fashion, and wrongly equated any breach with an increased risk of suicide. The Appellant says the guidelines emphasise that media organisations should avoid reporting suicides in ways that give undue prominence, sensationalise, give details of location or method, or suggest it was painless or a solution to problems. Sensitive coverage can be beneficial. The Appellant argues that it is still possible to report trends and causes responsibly, and that far more detailed information is routinely published as a result of inquests and Prevention of Future Deaths reports issued by coroners. The Appellant also says it was wrong to jump from the guidelines saying that it is best to look at timeframes of three or more years, to finding that section 38(1) was engaged – the guidelines cannot determine a FOIA application; it is one step removed from the primary concern of alarmist reporting; it is a preference not a rule; there may be reasons why it is helpful to consider a data set in this way; and in context this would not realistically create an increased risk of suicide.

[25]DHSC’s response says the risk arose not just from publication, but from anticipated use of the statistics, and the guidelines were expressly treated as advisory. DHSC emphasises the multiple vulnerabilities within the affected group and extreme sensitivity of the circumstances, and says a comparison with coronial reporting is incorrect (noting that the guidelines also warn specifically about the risk of misreporting coronial proceedings and decisions). In relation to the advice on avoiding comparisons between periods of less than three years, this is relevant to the degree of heightened risk, and this is not limited to alarmist reporting. The Appellant fails to recognise the risk of small samples, and that the problem is not just the publication of the data, but the use to which it is reasonably likely to be put.

[26]We have looked at the full document – Samaritans Media Guidelines for Reporting Suicide. The following paragraphs are particularly relevant to the issues in this appeal:a. “Oversimplification of the causes or perceived ‘triggers’ for a suicide can be misleading. As mentioned in the previous section, the suggestion that a single circumstance or incident, such as bullying, job loss, relationship breakdown or a bereavement, was the cause increases the risk of contagion. Vulnerable people experiencing similar issues are more likely to over-identify with the deceased when a single reason is given”. This is relevant because of the likelihood that the requested data will be linked to the Bell decision and the Trust’s decision to stop referrals for puberty blockers. This may not be the actual reason for any of the reported suicides, but there is a very clear likelihood that links will be made and published. Vulnerable young people who no longer have access to puberty blockers will be more likely to identify with suicides which appear to have happened after the Bell decision.

b. “Don’t refer to a possible rise in suicides in a specific place or among a particular group as an ‘epidemic’, ‘spate’ or other similar term. Two or more people taking their own lives who, for example, share a similar background, age or live in a similar geographic area may be coincidence. Steer clear of implying a connection where there may be none. Evidence suggests that reference to clusters can lead to additional suicides”. This is again relevant because of the likelihood that the requested data will be linked to the Bell decision and the Trust’s decision to stop referrals for puberty blockers, in a way that suggests a connection or cluster of suicides among young people who were seeking treatment from the Trust. We note the evidence from Ms Benjamin that there has been significant reporting, particularly on social media, about suicides amongst children and young people suffering from gender dysphoria and patients using the Trust’s gender identity service.

c. “Using ‘trend’ data within suicide stories can be problematic. Be aware that suicide rates in a single year may deviate from an overall trend. This can be especially the case if focusing on the number of suicides in small geographic areas or particular groups. It is best to look at timeframes of three or more years to identify significant patterns”. This is directly relevant as the Request seeks to compare a two-year period with a four-year period, for a group where low numbers are involved (a total of 12 suicides over six years). The guidelines suggest a period of three or more years to avoid misleading trend data. In a group of only 12 in total, reducing a period to two years clearly risks data that misleadingly suggests a certain trend.

[27]We agree with the Appellant that these guidelines cannot determine the issue of whether section 38(1) is engaged. However, they are both relevant and persuasive in deciding whether there is a “very significant and weighty chance” that disclosure would endanger the safety of any individual, by causing or encouraging suicide.

[28]We have taken into account the fact that those likely to be affected are a particularly vulnerable group of individuals. They are people who have sought treatment from the Trust in relation to gender identity, or other individuals who have issues relating to gender identity and so would identify with those who had sought treatment from the Trust and taken their own lives. They may well be young people under 18, because this is the group that puberty blockers are most relevant to. They may well be individuals who have mental health conditions and/or autism, as described in the final report of the Cass Review referenced in Ms Benjamin’s statement. The Cass Review also considered a study of suicidality across Canadian, UK and Dutch gender clinic cohorts, which found a rate of suicidality similar to non-trans identified youth referred to child and adolescent mental health services. This vulnerable group would be directly affected by disclosure of the requested data, which means that the risk of suicide is higher than for the general population.

[29]The Appellant’s witness statement says that this hypothetical at-risk cohort does not exist because, following the Court of Appeal decision in Bell, a person can consent to puberty blocking treatments, and there are now clinical trials taking place. We do not agree that this removes the risk. The existence of a clinical trial is not the same as access to puberty blockers through the Trust. Young people who are struggling with gender identity are generally vulnerable and remain unable to access puberty blockers easily, and so are at risk of over-identifying with suicide statistics from the time of the original Bell decision.

[30]We have also considered the specific content of the requested data and how that fits with the Samaritans guidelines. This is discussed in the Closed Annex to this decision.

[31]Having taken all of these matters into account, we find that disclosure of the withheld information would be likely to endanger the safety of any individual. The endangerment is suicide or attempted suicide. We consider that this is a very significant and weighty chance, or something that may very well occur. This decision is based on the vulnerability of the affected group of individuals, including individuals who may identify with those in the statistics who took their own lives, and the Samaritans guidelines. It is also based on the controversial nature of the underlying issue, and the likelihood that the information would be reported in a way that would breach the guidelines – whether deliberately, or due to misinterpretation of data based on small numbers. As put simply in Professor Appleby’s report, young people who are already distressed are likely to hear the message that “people like you, facing similar problems, are killing themselves”. This oversimplification and/or suggested connection between suicides is expressly cautioned against in the Samaritans guidance because of over-identification leading to further suicides. The originally published data was handled responsibly by being split into two periods of three years each. Splitting the data in the way requested by the Appellant would create a materially greater risk of the data being interpreted or reported in a manner contrary to the Samaritans guidelines.

[32]Does the public interest in maintaining the exemption outweigh the public interest in disclosing the information? The Appellant does not appeal on this point. We have considered it briefly. There is already the public data that was presented in the report, so the public interest in the data split differently is limited (particularly as that does not exactly match the timing of the Bell decision either). This is balanced against the likelihood of suicide or serious harm to vulnerable young people, which would be a very severe consequence of disclosure. We find that the public interest in maintaining the exemption clearly outweighs the public interest in disclosing the information.

[33]DHSC also relies on section 38(1)(a) - would disclosure of the withheld information endanger the physical or mental health of any individual, or would it be likely to do so? Their argument is based on the distress that would be caused to the families of deceased individuals, particularly where small numbers are involved so that it is likely the individuals could be identified.

[34]We have considered this argument, but are not giving detailed reasons as we have already found that the requested information is exempt from disclosure under section 38(1)(b). We accept that the release of this information is likely to cause some new distress to affected families. However, on the limited evidence that we have been provided with, we do not find that it meets the bar of being “likely” to “endanger” mental health under this section, meaning a very significant and weighty chance. Distress is not the same as endangered mental health. We do not mean to minimise the devastating effects of suicide on families, particularly where young people are involved. However, there will have been prior and ongoing publicity about these matters, and some time has passed since the relevant dates. DHSC deals with this argument relatively briefly in their response to the appeal. We are not convinced on the material we have that the test for endangerment has been met.

[35]We dismiss the appeal for the reasons explained above. Signed: Judge Oliver Date:11 August 2026