Scottish Information Commissioner criticised by House of Lords for error in law

A set of anonymised medical statistics about a region is still personal data and should not be released under Freedom of Information laws, the House of Lords has said, overruling the Court of Session and the Scottish Information Commissioner. As a result, the Commissioner's decision has been set aside.

The Lords conducted a two day hearing in April on a case which directly pitted the Scottish Freedom of Information (FOI) Act against the Data Protection Act.

FOI legislation is designed to release information generated by public bodies while data protection laws restrict people's access to information which can be classed as personal data.

The Lords said that the information that Scottish Parliamentary researcher Michael Collie requested from NHS agency the Common Services Agency (CSA) counted as personal data and should not be released.

The Scottish Information Commissioner (SIC), Kevin Dunion, had originally ruled that the anonymised data was not personal and should be released.

This has been overturned, and Dunion came in for stiff criticism in the Lords ruling:

"It has to be said, with respect, that the approach which he took … suffers from a number of defects," the Lords said. "He did not ask himself whether the barnardised data would be personal data within the meaning of section 1(1) DPA" and, if so, whether its disclosure would breach a data protection principles. Indeed "he did not find it necessary to consider whether release of the data in that form would be in accordance with the data protection principles," said the ruling.

"The effect of the Commissioner’s decision was to require the Agency to release information to Mr Collie, not just to give him advice or assistance," said the judgment. "[The SIC] did not pursue the point to its proper conclusion. This was an error of law".
The judges' ruling can be seen here: The ruling

Lords overrule courts, criticise Scottish Information Commissioner (, 9 July 2008)


Doublespeak said...

It seems strange that, in the badly spun press release on the Scottish Information Commissioner's website (, Dunion is said to "welcome" the House of Lords decision.

So he welcomes the judges ruling which criticises his decision to order disclosure of the leukaemia data and concludes that Dunion had committed an error in law. That's pretty serious.

It is a matter of fact that there have been no "developments since the issue of the original decision" in either Data Protection or Freedom of Information law which would have affected his consideration of this case. He doesn't seem to be able to accept that he got it wrong - badly wrong - and wasted thousands of pounds of taxpayers' money in the process.

In his press release Dunion says he is "looking forward to working with the Common Services Agency to establish what information can be released". I would have thought that he could have worked with the CSA much earlier than this to establish what could be released.

I wonder just how much money this case has cost in terms of legal fees etc. as a result of Dunion's inability to carry out a thorough investigation into the matter. And it's bound to cost a hell of a lot more since the case has now been remitted to Dunion for him to reconsider it properly. How many more years is that going to take?

Time for a freedom of information request to the Commissioner's Office anyone?

Zorro said...

The Herald also covered this story (Battle over leukaemia figures returns to Scotland -

There is also an interesting comment from Chris Morgan:

"I welcome the fact that the Law Lords have recognised the professional statistical issues involved here as well as the laudable aim of publically available information.

Statistical Disclosure Control is not a job for amateurs.

The political activists have in comments to a previous article in this paper (see Richard Bramhall's comments ) suggested that there is a major conspiracy to cover up figures and that cancer registries are involved. This is just ludicrous.

The issue is that the identity of cancer patients and their medical details must be protected otherwise the system which is voluntary would collapse leaving no usable data at all, to improve services.

The draft CSA document referred to by the Scottish IC clearly says that it will be revised in the light of the ONS guidance due in 2006.

This guidance says that the process of "Barnardisation" would not protect the requested dataset. adequately. The high number of zeros and low counts would make it useless.

It is possible to adequately protect the dataset using other methods recommended by ONS, such as controlled rounding, table redesign etc. The WCISU did this in Wales.

There are serious questions about the standards of research governance and statistical competence of some Green researchers. For example Chris Busby one of Bramhall's associates has been widely criticised for producing meaningless results.

Leave it to the experts"

Couldn't agree more.

Anonymous said...

So the British government leaned on the Lords as everyone predicted and they overturned the sensible ruling of the Scottish Information Commissioner. Notice that the government sent a heavy to the hearing? They had to do this because otherwise it would open the gates to people finding that they were being poisoned by industry and by radioactivity. Couldnt have that, chaps. If you can understand, check out my analysis of the Scottish Cancer Registry study of child leukemia in Dumfries and Galloway. The one where they included the childhood leukemias caused by the Chernobyl fallout.
Chris Busby

Richard Bramhall said...

As has become usual in this subject area, we see highly personal attacks on me and Busby by anonymous or unidentifiable people; in this case cut and pasted from another blog. I suppose this is a campaign to spread mud as widely as possible. For the record, I am not a political activist; I am interested in the truth of the link between disease and low levels of radioactive pollution.
The Lords' decision is not a surprise. It's one rule for the authorities and another for people like us; here's an interesting piece of evidence. The paper which, at an early stage in this dispute over access to health data, the Scottish health authorities published in Occupational and Environmental Medicine* uses data in a form which, according to the Lords' ruling, is personal because the numbers in some cells are fewer than 5. I have before me a letter in which one of the paper's authors defends using these small counts: " … the risks of disclosure in this context remain very low, given the size of the geographical area and the size of the denominator populations." (I shall provide Kevin Dunnion with a copy of this letter. He should find it useful in his conversations with the Common Services Agency as they try to agree on what constitutes "personal" information.)
Concerning competence in data handling, the paper I have referred to was an attempt to defuse public concerns about sea-borne pollution, but it was a shockingly bad piece of epidemiology because it ignored a massive confounding factor – fallout from the Chernobyl accident arriving in the middle of the study period. I have said this before; I think it was in the Herald blog which "Zorro" quotes from so selectively. The paper's faults have been shown up by Busby**.
In a quite separate paper the Welsh cancer authorities tried to debunk similar concerns in Wales but similarly made gross and elementary epidemiological errors which Dr. Busby also showed up in the literature. We have now lodged a complaint about this incompetence with the BMA.
Unspecific, erroneous, anonymous attacks don't negate the truth, however widely you disseminate them, Zorro.

* Risk of leukaemia among children living near the Solway coast of Dumfries and Galloway Health Board area, Scotland, 1975–2002 J M Stark, R J Black, D H Brewster Occup Environ Med 2007;64:66–68. doi: 10.1136/oem.2006.028829
**Is there a sea coast effect on childhood leukaemia in Dumfries and Galloway, Scotland, Busby C. C. Occup Environ Med.2008; 65: 286

Anonymous said...

More tired and misleading propaganda from the Busby-Bramhall double act. I recently came across this link on another forum:
Well worth a read - and the secondary links, which all seem to check out. One of the links takes you to a Sunday Herald story and forum, where someone calling him or herself "JunkScienceWatch" shows quite clearly that Busby's critique of the Scottish study is complete b*llocks. I doubt if anyone capable of performing primary school arithmetic will be conned by anything Busby comes up with. Biased Agenda-Driven (BAD) "science". As the first poster observes, what a bl**dy waste of taxpayers' money. And if Bramhall is genuinely interested in the truth as he claims, he could start by removing the multitude of factual errors from his ludicrous website, a few of which are highlighted in the "chrisbusbyexposed" link given above (and all of which can be easily verified by anyone with internet access and a shred of intelligence). As for personal attacks, Bramhall might also like to remove the many personal attacks from his own website before he complains about others daring to criticize him and his hero, Busby.

Anonymous said...

Does anyone know what has happened to this one, getting on for two years from the HoL judgment, and more than five years from the original request? How come public authorities get 20 days to respond while SIC apparently gets years and years?