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DoH complies with High Court ruling on definition of personal data in abortion statistics case

The Department of Health has decided not to appeal the recent High Court ruling on the definition of personal data in Department of Health v IC [2011] EWHC 1430 and has disclosed the disputed statistics on the number of late of abortions carried out in England and Wales.

Following the Department’s appeal to the High Court, Mr Justice Cranston held that the Tribunal had been entitled to find, from the evidence before it, that the proposed disclosure was of fully anonymised data, which would not identify or (in combination with other information) lead to the identification of any of the individuals concerned.

The key part of the judgement considered the meaning of a disputed passage in Lord Hope’s judgement in the House of Lords ruling on Common Services Agency v Scottish Information Commissioner [2008] UKHL 47. This was the request for childhood leukemia statistics by census ward in Dumfries and Galloway.

Mr Justice Cranston found that:

• Lord Hope had recognised that the CSA could itself always identify the children involved from the original information which it held

• it did not follow that statistics derived from that data, if disclosed in a fully anonymised form would still be personal data. This is a point on which, he found, all members of the House of Lords demonstrated ‘a shared understanding’.

• the House of Lords decision to refer the issue back to the SIC in that case was not to determine whether the process of barndardisation would transform the data into data that would no longer be personal data in the hands of CSA itself. (This is what the Tribunal had found in its ruling in the abortion statistics case.) The process of barnardisation (by which low numbers were randomly increased or decreased by 1 or left as they were) was not capable of doing this, since Lord Hope had expressly recognised that the CSA would still hold data identifying the children concerned. The point of the referring the case back to SIC was to determine whether bardnadisation could prevent the public from identifying any of the children involved.

•the Tribunal had made an error of law. It should have found that disclosure of fully anonymised abortion statistics to the public did not involve a disclosure of personal data, even though the Department of Health, the data controller, could still identify each of the women involved.

• any other conclusion would be ‘divorced from reality’. The argument that the data remained personal data, even if disclosed to the public in fully anonymised form, because the data controller could identify those involved, would lead to the conclusion that to reveal that 100,000 women had an abortion in a particular year would be to disclose personal data about every one of them, which “is not a sensible result” and would seriouslty inhibit the publication of medical statistics.

See also:
Department of Health statement 5 July 2011

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