R Department of Health v Information Commissioner
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 20 April 2011 |
| Neutral Citation | [2011] EWHC 1430 (Admin) |
| Docket Number | Case No. CO/13544/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 April 2011 |
[2011] EWHC 1430 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
Case No. CO/13544/2009
Timothy Pitt-Payne QC and Joanne Clement (instructed by Information Commissioner) appeared on behalf of the Claimant
James Eadie QC and Jason Coppel (instructed by Department of Health) appeared on behalf of the Defendant
Introduction
The Department of Health brings this appeal under Section 59 of the Freedom of Information Act 2000 (" FOIA") against the decision of the Information Tribunal ("the Tribunal"), which ordered the Department of Health to disclose late term abortions statistics. In summary, the Department of Health is concerned that disclosure of the statistics would create a real risk of patients being identifiable. The respondent is the Information Commissioner who has responsibility under both FOIA and the Data Protection Act of 1998 ("the DPA"). He had previously ordered that this information should be disclosed. Hence his case is that the Tribunal was right to order disclosure. By a respondent's notice, however, the Information Commissioner contends that one aspect of the Tribunal's reasoning — that the statistics were personal data — was erroneous.
Background
Section 1(1) of the Abortion Act 1967 contains various permissible grounds for abortion. One of these is set out in Section 1(1)(d):
"That there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped."
Unlike terminations generally, ground E terminations, as they are called, can be carried out after 24 weeks gestation. A person is not guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner. If two registered medical practitioners are of the opinion, formed in good faith, that one of various statutory conditions are satisfied the relevant opinion must be recorded. This is done on form HSA1, set out in part 1 of schedule 1 to the Abortion Regulations 1991, 1991, SI No.499, as amended ("the Abortion Regulations").
Specified information about each termination must also be provided to the Chief Medical Officer under regulation 4 of the Abortion Regulations. This is done on form HSA4, contained at schedule 2 to the regulations. The information includes the name, address and General Medical Council number of the medical practitioner terminating the pregnancy; the name and address of any other doctor who joined in giving the certificate HSA1; the patient's details, including the patient's hospital, clinic or NHS number, or full name, date of birth, post code, and marital status; the number of previous pregnancies and their outcome; details of the place and method of termination; gestation; grounds for termination; complications up to discharge; and any maternal fatalities. Regulation 5 of the Abortion Regulation provides that information furnished to the Chief Medical Officer in pursuance of these regulations should not be disclosed.
The information collected by the Chief Medical Officer has found its way into annual abortion statistics, which have been published since 1968. These statistics include figures for abortions carried out under ground E. Prior to April 2002, publication of the abortion statistics was in the hands of the Office of National Statistics ("the ONS"). For years up to and including 2002, detailed statistical information was published about ground E abortions. The information listed a number of different foetal abnormalities and provided the total number of terminations for each one, together with a figure for terminations of over 24 weeks gestation. Some individual cells or items were included with counts of zero, one or two.
In 2002, the Department of Health assumed responsibility for publishing the abortion statistics. These gave less information than in previous years. For 2003, initially, the published figures for ground E abortions were in summary form only. As a result, in February 2005, the political director of the ProLife Alliance made an FOIA request to the Department of Health in respect of the abortion statistics for calendar year 2003. It was for the same level of detail as published in previous years. Two months later the Department of Health replied, refusing to provide the information requested. It relied on the qualified exemption in Section 36 of FOIA and referred to the anticipated guidance from the ONS. It indicated that it would consider publishing more information once the guidance was available.
The ONS guidance was entitled, "Disclosure Review for Health Statistics 1st report — Guidance for Abortion Statistics". It was published in July 2005 following a review led by the National Statistician. It provided an analysis of the precise types of cell or item which posed identification risks, and expressed a view on other potentially available information which, in conjunction with the statistical information, could exacerbate identification risks. According to the guidance, the unsafe cells were counts of abortions that were zero, unless no other value was logically possible; less than five for government office regions in England, for Wales, or for any other larger geographical area; and less than 10 for any geographic area smaller than the government office regions in England or Wales; less than 10 for highly sensitive variables associated with either one or two practitioners, or associated with either one or two hospitals. The highly sensitive variables were ages of less than 15 years, gestation over 24 weeks, procedure by gestation, and medical conditions. The guidance considered that information regarding ground E abortions was highly sensitive and therefore figures for less than 10 occurrences should be suppressed.
A second ONS guidance document entitled, "Review of the Dissemination of Health Statistics: Confidentiality Guidance", was published in 2006. This document set out the process of confidentiality assessment and explained that disclosure control methods were applied when breaches of confidentiality were considered to be statistically likely. It categorised abortion statistics as high risk.
As a result of the July 2005 ONS guidance, the Department of Health published a statistical bulletin in July 2005 covering the 2003 figures. At the same time, the statistics for 2004 were published in a similar format. The introduction to the 2003 statistical bulletin stated:
"The format of the tables presented in this bulletin has been changed to reflect concerns over issues of privacy and confidentiality (see Section 5 for further information)."
Section 5 of the bulletin referred to the ONS guidance and summarised its key recommendations. The statistical bulletin included a table showing total ground E abortion figures in 2003 in respect to various types of abnormality with separate figures for late abortions, in other words, those carried out at over 24 weeks gestation. But certain categories of abnormality were combined, and where a cell had a figure of between zero and nine, that figure was suppressed. Later in 2005, the Department of Health published aggregate figures over a three year period, 2002 to 2005, in which individual cell counts which had been suppressed were aggregated over the years to provide, where applicable, a total cell count of 10 or more.
Meanwhile, in May 2005, the ProLife Alliance asked the Department of Health to conduct an internal review. In January of the following year it contacted the Information Commissioner. When the results of the internal review were finally available in April 2006, the Information Commission investigated. In the course of that investigation, the Department abandoned its reliance on Section 36 of FOIA, but continued to rely on the absolute exemption relating to personal data, Section 40, and the statutory prohibition, Section 44. In July 2008, the Information Commissioner issued his decision notice. He concluded that the disputed information was not personal data, since neither the doctors nor the patients were identifiable from the statistics. Hence Section 40 did not apply. He also concluded that there was no relevant prohibition on the disclosure of the disputed information, and thus Section 44 did not apply. As neither exemption applied, he required the Department of Health to disclose the requested information. In other words, he required it to disclose statistics from 2003 at the same level of detail as published previously by the ONS.
Statutory framework
The general right of access to information held by public authorities is contained in Section 1 of FOIA. Section 1(1) establishes a right of access to information held by public authorities. Any person making a request is entitled to be informed in writing by the public authority whether it holds information of the description specified in the request, and if that is the case, to have that information communicated to him.
Section 1(1), is subject to subsection (2), which sets out the effect of the exemptions in part 2 of FOIA. The exemptions contained in part 2 fall into two classes: absolute exemptions and qualified exemptions. Absolute exemptions exempt all information of a specified description. With an absolute exemption, the only question is whether the information falls within the description. Qualified exemptions are subject to a...
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