Common Services Agency v Scottish Information Commissioner (Scotland)
| Jurisdiction | Scotland |
| Judgment Date | 09 July 2008 |
| Neutral Citation | [2006] CSIH 58 |
| Date | 09 July 2008 |
| Docket Number | No 13 |
| Court | Court of Session (Inner House) |
Court of Session Inner House First Division
Lord President (Hamilton), Lord Nimmo Smith, Lord Marnoch
Freedom of Information - Applicant requesting data on incidence of childhood leukaemia in Dumfries and Galloway - Common Services Agency declining to provide data standing the risk of identification of living individuals - Commissioner deciding that Common Services Agency had not complied with the Act, since perturbed or 'barnardised' data could be provided - Whether 'barnardised' data was information held by the Common Services Agency and therefore should have been disclosed - Whether 'barnardised' data in question was exempt as personal data - Freedom of Information (Scotland) Act 2002 (asp 13) - Data Protection Act 1998 (cap 29)
The Freedom of Information (Scotland) Act 2002 provides in sec 1(1) that "a person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority." The Act prescribes, inter alia, certain exceptions to the general entitlement to information, including in sec 38, personal data, disclosure of which would contravene the data protection principles. The Act further provides for the appointment of a Scottish Information Commissioner who is responsible for promoting the observance of public authorities with the terms of the Act. Section 47(1) provides that where a person is dissatisfied with the response received from a public authority, an application may be made to the commissioner for a decision whether the request was dealt with in accordance with the Act. The Data Protection Act 1998 provides, inter alia, for the protection of personal data.
A request had been made of the appellant for information relating to the incidence of childhood leukaemia in Dumfries and Galloway, by census ward, for each year throughout the period 1990 to 2003. The appellant had offered to provide data for the whole area, aggregated for the combined period 1990 to 2001 (data for the years 2002 and 2003 being unavailable), but had declined to provide information in the form sought on the basis that the very small numbers involved in each census ward would give rise to a risk of indirect identification of living individuals. As such, the appellant regarded the information as exempt information. The applicant sought a review of that decision by the appellant, who affirmed its decision. Thereafter, the applicant sought to have that decision reviewed and applied to the respondent for a decision in terms of sec 47. The respondent decided that the appellant had not dealt with the applicant's request for information fully in accordance with the Act, in that the appellant could have provided census ward data, by year, to the applicant in a perturbed or 'barnardised' form. The process of 'barnardisation' involved the random modification of small numbers, by which means the risk of identifying individuals is minimised while useful statistical information may still be provided. The appellant argued that: (i) the process of barnardisation involved the creation of something new and accordingly, the barnardised data was not information held by the appellant at the time the request was made; and (ii) the barnardised data were exempt on the ground that they constituted personal data within the meaning of the Data Protection Act 1998. The respondent argued that: (i) the barnardised data was simply the raw data held by the appellant presented in a particular form; and (ii) the barnardised data were not "personal data" and were not focused on individuals and were not biographical.
Held that: (1) barnardised data was to be regarded as providing the same information as the raw data, subject to a modification (para. 16); (2) a table setting out barnardised census ward data, as sought, was not biographical in a significant sense and did not constitute personal data (para. 23); and appeal refused.
The Scottish Information Commissioner issued a decision pursuant to sec 74 of the Freedom of Information (Scotland) Act 2002 to the effect that the Common Services Agency had not dealt with an applicant's request for information fully in accordance with the Act. The Common Services Agency then appealed against the decision of the commissioner to the Court of Session.
Cases referred to:
Durant v Financial Services AuthorityUNKUNK [2003] EWCA Civ 1746; [2004] FSR 28
Textbooks etc. referred to:
Scottish Executive, Code of Practice on the Discharge of Functions by Public Authorities under the Freedom of Information (Scotland) Act 2002 (Scottish Executive, 2004), paras 20, 75
The cause called before the First Division, comprising the Lord President, Lord Nimmo Smith and Lord Marnoch, for a hearing on the summar roll on 7, 8 and 10 November 2006.
At advising, on 1 December 2006-
Lord President (Hamilton)- [1] On 11 January 2005 a Mr Collie, acting on behalf of a Member of the Scottish Parliament, requested the Common Services Agency ('CSA') to give to him certain information under the Freedom of Information (Scotland) Act 2002 (asp 13) ('FOISA'). The request read:
'Recorded incidents of childhood leukaemia. Please supply me 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.'
Certain correspondence thereafter took place between an official of the CSA and Mr Collie. The official explained that, while the CSA held relative data for the period 1990-2001, it did not hold data for 2002 or 2003 as such data were not yet complete. He further explained that the years for which data were available involved very small numbers and that there were in consequence concerns that their release would give rise to a significant risk of indirect identification of living individuals. This applied whether the numbers considered were for census wards per year or for the whole of the Dumfries and Galloway area per year. He indicated that the CSA would be willing to give to Mr Collie the data for the whole area of Dumfries and Galloway aggregated for the combined period 1990-2001. It regarded the data requested as otherwise being exempt information under the FOISA and for that reason had decided not to accede to Mr Collie's request.
[2] Mr Collie sought a review by the CSA of that decision. On that review the CSA affirmed its decision and gave notice to that effect under sec 21 of the FOISA.
[3] Mr Collie being dissatisfied with that notice then applied under sec 47 to the respondent for a decision. His application read:
'I wish the Commissioner to review the refusal of the NHS statistical service to release details of recorded incidences of Leukaemia in Dumfries and Galloway, as per my e-mail request, appended below.'
That email comprised his initial request. The expression 'incidence' as distinct from 'incidents' had been used in the correspondence between the official and Mr Collie.
[4] The respondent then entered into correspondence with the CSA. He also made his own enquiries. Ultimately he issued on 15 August 2005 his decision on Mr Collie's application to him.
[5] After a narrative and reasoning the decision was expressed in the following terms:
'I find that the Common Services Agency (the CSA) did not deal with Mr. Collie's request for information fully in accordance with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in that it breached section 1(1) of FOISA in not providing certain information by year at census ward level for the Dumfries and Galloway postal area, for the years in which it held such information 1990-2001, as detailed above.
In respect of information for which an exemption applied, I find that the CSA did not provide advice and assistance to Mr. Collie as to what information it was possible for it to supply to him as required under section 15 of FOISA.
I require that CSA provide Mr. Collie with the census ward data for 1990-2001 for the DG postal area on the basis set out in paragraphs 112 to 114 above, that is, in a perturbed (barnardised) form unless Mr. Collie would prefer to receive alternative information on aggregate annual figures for the whole DG Health Board area as indicated in paragraph 115 above.'
[6] In the course of his reasoning the respondent had concluded that the true data at census ward level constituted personal data within the meaning of the Data Protection Act 1998 (cap 29), that they were, by virtue of sec 38 of the FOISA (as read with the 1998 Act) exempt data and that the CSA was not obliged to give them to Mr Collie. However, in the course of the correspondence there had been reference to a process of perturbation known, after its...
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