Department of Health v (1) Information Commissioner (2) Pro Life Alliance
Court: Information Tribunal
Judge: Fiona Henderson, Jacqueline Blake, Pieter de Waal
Date of judgment: 15 Oct 2009
Summary: Freedom of information - Data protection - s. 40 Freedom of Information Act 2000 (personal information exemption) - s.44 Freedom of Information Act 2000 (disclosure prohibited by an enactment) - Abortion statistics - Anonymisation - Abortion Regulations 1991 - Pro Life Alliance
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Christina Michalos KC (Appellant)
Instructing Solicitors: Solicitor to the Departments of Heath & Work and Pensions
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.
(1) Whether low cell count statistics (ie. counts of 0,1,2 and numbers less than 10) were personal data within the meaning of the Data Protection Act 1998 because a person could be identified from that data (a) together with data in the hands of DH or (b) together with information publicly available.
(2) Whether the exemption for personal data under s.40(2) FOIA applied.
(3) Whether zero cell counts should be suppressed as they may lead to identification.
(4) Whether s.44 FOIA provided an exemption for disclosure by virtue of the Abortion Regulations 1991 (which prohibit disclosure of abortion information provided mandatorily to the Chief Medical Officer).
Allowing the appeal to an extent but finding that the failure to disclose was in breach of the FOIA:
(1) The disputed information did constitute personal data in the hands of DH pursuant to s. 1(1)(b) of the Data Protection Act following Common Services Agency v Scottish Information Commissioner.
(2) Disclosure would not contravene the Data Protection Principles and consquently the s.40 FOIA exemption did not apply.
(3) Zero cell counts were capable of adding information to the totality of data such as to reveal personal data.
(4) Disclosure would not be in breach of the Abortion Regulations 1991 and therefore the s.44 FOIA exemption did not apply.
This decision may have a wide ranging impact on the publication of sensitive personal data under FOIA. Although the Tribunal did conclude that the data was personal data and that zero cell counts should be protected as they may lead to disclosure of personal data, they considered that all of the statistical information had a very high level of abstraction. For the purpose of identification, there was no real distinction between the publication of low cell count numbers and those above counts of 10. This was not withstanding that the ONS Guidance (specialistic and expert statistical guidance) considered that the risk was real and not purely minimal.
Perhaps surprisingly, the Tribunal concluded that Article 8 rights were not engaged and that, if they were, such interference was proportionate and necessary for the prevention of crime (abortion outside the Abortion Act being illegal), for the protection of health and for the protection of the rights and freedoms of others (the right to lobby Parliament and to stimulate informed debate).