The Commissioner, with the support of the Court of Session, had
decided that, as a matter of fact, a set of anonymised medical
statistics were not personal data and had ordered their release
under Freedom of Information (FOI) laws.
According to one expert, the Lords' judgment shows that the
Commissioner had failed to appreciate that the degree of
anonymisation employed was very likely to be insufficient to
protect anonyminity.
The Lords overturned decisions of the Court of Session and the
Scottish Information Commissioner and required
the Commissioner to re-examine the original request.
The Lords conducted a two day hearing in April on a case which
directly pitted the Scottish Freedom of Information Act against the
Data Protection Act.
FOI legislation is designed to release information generated by
public bodies while data protection laws restrict people's access
to information which can be classed as personal data.
The Lords said that the information that Scottish Parliamentary
researcher Michael Collie requested from NHS agency the Common
Services Agency (CSA) counted as personal data and should not be
released.
Collie had asked the CSA to provide him with "details of all
incidents of leukaemia for both sexes in the age range 0–14 by year
from 1990–2003 for all the DG [Dumfries and Galloway] postal area
by census ward".
When figures are so low as to be capable of identifying
individuals they can be 'barnardised'. This is a method designed by
statistician Professor George Barnard that helps to disguise
people's identities when cells of information contain low numbers.
It randomly adds zero, one, or minus one to the numbers two, three
and four; and adds zero or one to the number one, when they appear
in a database. Zeros are left at zero.
The Scottish Information Commissioner (SIC) Kevin Dunion had
originally ruled that the anonymised data was not personal and
should be released.
This has been overturned, and Dunion came in for stiff criticism
in the Lords ruling.
"It has to be said, with respect, that the approach which he
took … suffers from a number of defects," the Lords said. "He did
not ask himself whether the barnardised data would be personal data
within the meaning of section 1(1) DPA" and, if so, whether its
disclosure would breach a data protection principles. Indeed "he
did not find it necessary to consider whether release of the data
in that form would be in accordance with the data protection
principles," said the ruling.
"The effect of the Commissioner’s decision was to require the
Agency to release information to Mr Collie, not just to give him
advice or assistance," said the judgment. "[The SIC] did not pursue
the point to its proper conclusion" and "this was an error of
law".
The Scottish court decisions that supported the SIC were based
on an error, the Lords said. The House of Lords judgment states
that in an attempt to resolve the case, the "First Division the
Lord President looked for guidance as to how to approach the
problem to the decision of the Court of Appeal in Durant v
Financial Services Authority".
The Durant case is a landmark in data protection law. Michael
Durant had requested all the information held on him by Barclays
Bank, but the case ruled that this did not include every single
document that mentioned him. It narrowed the definition of personal
data.
This not only restricted what should be released under Data
Protection Act subject access requests, but opened up the amount of
data which could be released under FOI legislation. The FOI Act
bars the release of personal data, but if that is defined narrowly
as in the Durant case then the volume of data that is releasable
grows.
The Lords, though, said that the Durant case was irrelevant.
"[Durant's] was a case where the person who was seeking disclosure
of the information was the data subject, as he was the individual
who was the subject of the personal data to which he request
related". However in this case "the only element in question is the
identification of the individual to whom the data relate". It
follows that "there is no need in this case to consider the kinds
of issue which the Court of Appeal addressed in Durant".
Dr Chris Pounder, an information law expert with Pinsent Masons
and editor of Data Protection Quarterly, said that the Lords were
worried about the impact of their decision. "The real issue which
taxed the Court for two days was that if it decided in favour of
the CSA, whether its decision would halt the ability of the
individuals to use FOI to obtain anonymous statistics in
general."
"The Court readily accepted that there is a significant public
interest in disclosing statistical data under FOI regimes and was
very concerned that its judgment might make other similar
disclosures of sensitive personal data very unlikely," he said.
"But I think they're basically saying that, on the facts of
this case, the Commissioner failed to recognise that the
degree of anonymisation employed would fail to protect
anonyminity."
Pounder said that those in the data protection field will be
disappointed that the House of Lords did not take the opportunity
to rule on the issues covered so controversially in the Court of
Appeal in the Durant case, but that the ruling clears up some
crucial issues.
"I think the House of Lords have crafted a decision that will
have minimal impact on the public and the FOISA and FOI regime," he
said. "However, people who work in data protection will find the
consideration of the definition of 'data', 'personal data' and
'sensitive personal data' are well worth the effort."
The Lords have remitted the case back to the Commissioner to see
whether the leukaemia statistics in question are capable of being
rendered fully anonymous. This establishes the principle that
public authorities can be required to anonymise data provided the
cost to the authority does not exceed a certain limit (currently
£600 in Scotland) and that, in so doing, they are not to be viewed
as creating new information. If the statistics are not capable of
being rendered fully anonymous then the Commissioner has to
consider whether the disclosure of the sensitive health personal
data would breach any of the data protection principles if they
were to be published.
Editor's note, 10/07/2008: Kevin Dunion,
the Scottish Information Commissioner, wrote to OUT-LAW today
regarding the original version of this story:
"The heading to the article
states that 'A set of anonymised medical statistics about a
region is still personal data and should not be
released.' No such finding was made by the Lords.
Instead, the Lords have remitted the decision to me to satisfy
myself whether the leukaemia statistics in question are capable of
being rendered fully anonymous. If they are capable of being
rendered fully anonymous, then the anonymised statistics will not,
according to the Lords, be personal data. If I am satisfied
that the statistics are not capable of being rendered fully
anonymous, then I will go on to consider whether the disclosure of
the data would breach any of the data protection principles.
"I am concerned that your readers, who may not have had an
opportunity to read the judgement in full, may come to the wrong
conclusions about the outcome in this case, which importantly also
confirmed that public authorities can be required to anonymise data
and that, in so doing, they are not to be viewed as creating new
information. Clearly, this is important in deciding whether
information is 'held' by a public authority for the purposes of the
Freedom of Information (Scotland) Act."
We have amended the story to make this clear. We apologise
to Mr Dunion and our readers for the inaccuracy in our original
intro.
Training for your organisation: Pinsent
Masons offers Data protection
training and also Freedom of
Information training.
