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NHS appeals to Lords over leukaemia ruling

'Fraught with disagreement and difficulty'

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The House of Lords will clarify how data protection and freedom of information laws should work together if it hears an NHS appeal against an order to release clinical data. Any ruling would be a defining one for the two emerging areas of law.

The NHS's Common Services Agency (CSA) has refused to hand over childhood leukaemia data for Dumfries and Galloway to Freedom of Information Act requester Michael Collie, fearing that the information could identify patients. It has lost its case in Scotland and is seeking leave to appeal to the House of Lords.

The Data Protection Act is designed to safeguard individual privacy while the Freedom of Information Act was passed to increase transparency of public bodies. The laws' opposing aims have clashed before, but a Lords hearing for the CSA case could finally give courts direction on how to reconcile the laws.

"What is significant is that this case has the potential to clear up some difficult issues for public authorities and for companies about the definition of personal data and just how that should be applied in practice," said William Malcolm, a privacy specialist at Pinsent Masons, the law firm behind OUT-LAW.COM.

"It also has the potential to actually look at this whole issue of balancing the public's right to know with the individual's right to privacy and to set down some clear guidance for people on the ground which has the force of the House of Lords behind it," he said.

Collie, a researcher for Green Party Member of the Scottish Parliament (MSP), asked for records relating to childhood leukaemia in Dumfries and Galloway in order to establish whether a nearby nuclear power station and military firing range had an effect on incidences of cancer.

The CSA refused, saying that the numbers were so small that releasing the data could identify patients. Both the Scottish Information Commissioner and the Court of Session – Scotland's highest civil court – have ruled in favour of the release of the information. The CSA has said it will seek leave to appeal to the Lords.

The Freedom of Information Act contains an exemption for the release of information which counts as personal data. The Data Protection Act says that an individual can only request information relating to them held by an organisation if it counts as personal data.

The definition of 'personal data' is central to both laws, and it is that which is controversial. The precedent currently followed was set in a case involving Michael Durant.

Durant sought copies of the personal information held on him by the Financial Services Authority (FSA). The Court of Appeal ruled that 'personal data' is quite a small category and does not automatically include any document which happens to mention a person's name. It said that it can only include material which is primarily focused on that person.

That ruling, handed down before freedom of information legislation was passed, has a knock on effect on the Freedom of Information Act. If 'personal data' refers to a small amount of information then it means that requests for copies under data protection legislation are not onerous for companies to fulfil. It also means, though, that large amounts of information must be supplied if a Freedom of Information request is made, because very little of it is exempted for being 'personal data'.

"The Collie case concerns two important things: the definition of personal data, what do we mean by that phrase, whether we're talking about it in the context of the Data Protection Act or whether we're talking about it in the context of the Freedom Of Information Act," said Malcolm. "It also looks at the application of that important exemption in the Freedom of Information Act, which is designed to balance two important things: the public's right to know and the individual's right to privacy, not easy concepts to reconcile. That is why the case has been fraught with disagreement and difficulty, you're trying to balance two very different rights and trying to ensure that those rights are properly given protection in law."

Pinsent Masons' Data Protection and Freedom of Information training

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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