Scottish Human Rights Law Group

The House of Lords considered the lawfulness of a decision of the Scottish Information Commissioner (acting under and in terms of the Freedom of Information (Scotland) Act 2000) who, in response to a request from an MSP for the Common Services Agency to supply him with recorded incidents of childhood leukaemia from 1990-2003 for the Dumfries and Galloway postal area by census ward, ordered that that the authority should supply the MSP with a table setting out the census ward data for 1990- 2001 for the requested area, with the data “barnardised” (which is to say scrambled or statistically perturbed in order to minimise the risk of identification of any individual child).   The Inner House had held that the information treated in this way would no longer be “biographical in a significant sense”, and the rights to privacy of the individual children would not be infringed by disclosure.  [2] In recalling the interlocutor of the Inner House the House of Lords found that there was no presumption in favour of the release of personal data under the general obligation that the Freedom of Information (Scotland) Act 2000 SA lays down.  Instead they held that this statute should be construed consistently with the Data Protection Act 1998 which sought to implement Council Directive 95/46/EC, the guiding principle of which was the protection of the fundamental rights and freedoms of persons, and in particular their right to privacy with respect to the processing of personal data.    They therefore ordered the whole matter to be remitted to the Information Commissioner for him to reconsider his decision in the light of the provisions of the 1998 Act which would require him to consider first whether the requested information could be sufficiently anonymised for it not to be “personal data”, and not, whether its disclosure to the MSP would nonetheless comply with the data protection principles.

Full report available here.

[2] Common Services Agency v Scottish Information Commissioner 2007 SC 231, IH