Cases

Department of Health v (1) Information Commissioner (2) Pro Life Alliance

Facts

The Department of Health (DH) published the 2003 abortion statistics in accordance with the Office of National Statistics (ONS) guidance, which recommended suppression of individual cell counts of less than 10. In 2005, the Pro Life Alliance requested a full statistical breakdown for abortions carried out under Ground E (namely on the grounds that there is a substantial risk that if a child were born it would suffer from physical or mental abnormalities such that it would be seriously handicapped).

DH declined to provide the statistics at the level of detail requested by the additional party relying on s.40 (personal data) and s.44 (disclosure prohibited by any enactment - namely the Abortion Regulations 1991) of the Freedom of Information Act 2000 (FOIA). DH contended that publication would allow the public identification of vulnerable women who had had abortions after 24 weeks gestation and also the limited number of practitioners who are prepared to carry out such terminations. The ONS guidance stated there was a risk of identification in respect of unsafe cells of less than 10. DH also contended that the Tribunal was bound to interpret domestic legislation in such a way as to give effect to the Data Protection Directive and the protection of privacy.

The Information Commissioner concluded that the numerical information was not personal data and did not fall within s.40 FOIA and that the s.44 exemption did not apply.

DH appealed to the Information Tribunal.

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