Court of Session challenge for Scottish Information Commissioner: NHS launches court action against Commissioner's decision

Court of Session challenge for Scottish Information Commissioner: NHS launches court action against Commissioner's decision

The NHS is to challenge the Scottish Information Commissioner in the Court of Session in an attempt to keep controversial cancer statistics secret.

The NHS says it has taken the action to protect patient confidentiality and it is the first time that Scotland's FOI legislation will be challenged in court.

Chris Ballance, Green Party MSP for the South of Scotland, made a request to the NHS Common Services Agency (CSA) in January, asking them to provide the annual incidence of childhood leukaemia in every Census ward in Dumfries and Galloway from 1990 to 2003. Some suspect that clusters of leukaemia could have been caused by radioactive pollution from plutonium washed up on the Solway coast from the Sellafield nuclear plant. Depleted uranium shells have also been tested at the Dundrennan military range near Kirkcudbright.

The CSA refused to provide Ballance with the information he had requested on the grounds that the small number of cases in some areas might enable the identification of individual patients who are still alive.

After a six-month investigation, the Scottish Information Commissioner upheld Ballance’s appeal on 15 August and ordered the CSA to supply the information within 42 days. According to the Commissioner the statistics could be presented in a way that prevented the potential identification of individuals.

Ballance accused the CSA of having something to hide: "I am very surprised that the CSA has decided to appeal the Information Commissioner’s decision,” said Ballance. “I am also rather angry. This is information which should be in the public domain and the Commissioner’s decision was fair. People have a right to detailed health statistics. Is there some political reason why they are determined to be so secretive? The people of Dumfries and Galloway have a right to know.”

Since January, the Commissioner's office in St Andrews has been flooded with more than 400 appeals against public authorities that have refused to provide information. 27 decisions have been issued and a further 79 cases have been closed. More than 300 other cases are currently being investigated.

As well as formal applications under the Freedom of Information (Scotland) Act and the Environmental Information Regulations, Kevin Dunion’s staff also handle enquiries about the legislation. To date they have dealt with 2262 enquiries.

Commissioner's Decision: Mr Michael Collie and the Common Services Agency for the Scottish Health Service (Scottish Information Commissioner's website)

NHS court battle over freedom of information (Sunday Herald, 2 October 2005)