The NHS's Common Services Agency (CSA) has
refused to hand over childhood leukaemia data for Dumfries and
Galloway to Freedom of Information (Scotland) Act requester Michael
Collie, fearing that the information could identify patients. It
has lost its case in Scotland and is seeking leave to appeal to the
House of Lords.
The Data Protection Act is designed to
safeguard individual privacy while the Freedom of Information Act
was passed to increase transparency of public bodies. The laws'
opposing aims have clashed before, but a Lords hearing for the CSA
case could finally give courts direction on how to reconcile the
laws.
"What is significant is that this case has the
potential to clear up some difficult issues for public authorities
and for companies about the definition of personal data and just
how that should be applied in practice," said William Malcolm, a
privacy specialist at Pinsent Masons, the law firm behind
OUT-LAW.COM.
"It also has the potential to actually look at
this whole issue of balancing the public's right to know with the
individual's right to privacy and to set down some clear guidance
for people on the ground which has the force of the House of Lords
behind it," he said.
Collie, a researcher for Green Party Member of
the Scottish Parliament (MSP) asked for records relating to
childhood leukaemia in Dumfries and Galloway in order to establish
whether a nearby nuclear power station and military firing range
had an effect on incidences of cancer.
The CSA refused, saying that the numbers were
so small that releasing the data could identify patients. Both the
Scottish Information Commissioner and the Court of Session –
Scotland's highest civil court – have ruled in favour of the
release of the information. The CSA has said it will seek leave to
appeal to the Lords.
The Freedom of Information Act contains an
exemption for the release of information which counts as personal
data. The Data Protection Act says that an individual can only
request information relating to them held by an organisation if it
counts as personal data.
The definition of 'personal data' is central
to both laws, and it is that which is controversial. The precedent
currently followed was set in a case involving Michael Durant.
Durant sought copies of the personal
information held on him by the Financial Services Authority (FSA).
The Court of Appeal ruled that 'personal data' is quite a small
category and does not automatically include any document which
happens to mention a person's name. It said that it can only
include material which is primarily focused on that person.
That ruling, handed down before freedom of
information legislation was passed, has a knock on effect on the
Freedom of Information Act. If 'personal data' refers to a small
amount of information then it means that requests for copies under
data protection legislation are not onerous for companies to
fulfil. It also means, though, that large amounts of information
must be supplied if a Freedom of Information request is made,
because very little of it is exempted for being 'personal
data'.
"The Collie case concerns two important
things: the definition of personal data, what do we mean by that
phrase, whether we're talking about it in the context of the Data
Protection Act or whether we're talking about it in the context of
the Freedom Of Information Act," said Malcolm. "It also looks at
the application of that important exemption in the Freedom of
Information Act, which is designed to balance two important things:
the public's right to know and the individual's right to privacy,
not easy concepts to reconcile. That is why the case has been
fraught with disagreement and difficulty, you're trying to balance
two very different rights and trying to ensure that those rights
are properly given protection in law."
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