If the case goes to trial it will be the first time that the Freedom of Information (Scotland) Act (FOISA), which came into force on 1st January, has been tested in court.
The action relates to a request for information from the Common Services Agency for the Scottish Health Service on incidences of childhood leukaemia from 1990–2003, for all of the Dumfries and Galloway postal area by census ward.
The request, filed in January on behalf of Green MSP Chris Ballance, was initially denied. It was denied again on review.
The Common Services Agency – now known as National Services Scotland (NSS) – refused to provide the information on the grounds that the data related only to a small number of cases and that there was a risk that it might identify people still living in the area, in breach of the Data Protection Act.
Collie appealed and, in a landmark ruling in August, the Scottish Information Commissioner ruled that the information had to be released.
While the NSS was entitled to ensure that personal health information was protected from public disclosure, nevertheless it was wrong not to provide any information, said Dunion.
He accepted that individuals might be at risk of identification as a result of the release of information, and that therefore the data constituted “personal data” under the Data Protection Act. He also accepted that disclosure of all the information requested would be in breach of a Data Protection Act principle requiring personal data to be processed fairly and lawfully.
However, this did not mean that some of the information could not be released, said Dunion.
He therefore required the agency to provide the information either at census ward level, suitably amended to further reduce any possibility of identifying individuals, or to release aggregate figures at a Health Board level.
“In making my decision in this case, I have sought to achieve a balance, which provides reassurance to individual patients about their right to privacy and respects the wider public’s right to information on health issues,” Dunion said at the time.
Speaking to the Sunday Herald, a spokeswoman for the NSS confirmed that it had filed the appeal, “having considered the Scottish Information Commissioner’s decision in relation to this request and its implication for NHS Scotland’s ability to protect patient confidentiality.”
