If the case goes to trial it will be the first time that the
Freedom of Information (Scotland) Act (FOISA), which came into
force on 1st January, has been tested in court.
The action relates to a request for information from the Common
Services Agency for the Scottish Health Service on incidences of
childhood leukaemia from 1990–2003, for all of the Dumfries and
Galloway postal area by census ward.
The request, filed in January on behalf of Green MSP Chris
Ballance, was initially denied. It was denied again on review.
The Common Services Agency – now known as National Services
Scotland (NSS) – refused to provide the information on the grounds
that the data related only to a small number of cases and that
there was a risk that it might identify people still living in the
area, in breach of the Data Protection Act.
Collie appealed and, in a landmark ruling in August, the
Scottish Information Commissioner ruled that the information had to
be released.
While the NSS was entitled to ensure that personal health
information was protected from public disclosure, nevertheless it
was wrong not to provide any information, said Dunion.
He accepted that individuals might be at risk of identification
as a result of the release of information, and that therefore the
data constituted “personal data” under the Data Protection Act. He
also accepted that disclosure of all the information requested
would be in breach of a Data Protection Act principle requiring
personal data to be processed fairly and lawfully.
However, this did not mean that some of the information could
not be released, said Dunion.
He therefore required the agency to provide the information
either at census ward level, suitably amended to further reduce any
possibility of identifying individuals, or to release aggregate
figures at a Health Board level.
“In making my decision in this case, I have sought to achieve a
balance, which provides reassurance to individual patients about
their right to privacy and respects the wider public’s right to
information on health issues,” Dunion said at the time.
Speaking to the Sunday Herald, a spokeswoman for the NSS
confirmed that it had filed the appeal, “having considered the
Scottish Information Commissioner’s decision in relation to this
request and its implication for NHS Scotland’s ability to protect
patient confidentiality.”
