Common Services Agency v Scottish Information Commissioner [2008] UKHL 47

14 July 2008

The House of Lords has issued its decision in the case of Common Services Agency v Scottish Information Commissioner [2008] UKHL 47. The case raises important issues regarding the interaction of the Data Protection Act 1998 ("DPA") and the Freedom of Information (Scotland) Act 2002 ("FOISA").

On 11 January 2005, Mr Collie, acting on behalf of a Member of the Scottish Parliament, asked the Common Services Agency ("CSA") to supply him with details of all incidents of childhood leukaemia for the Dumfries and Galloway postal area by census ward. The CSA refused on the basis that there was a significant risk of indirect identification of living individuals. The CSA considered the information to be "Personal Data" within the meaning of s1(1) DPA and such information is exempt from disclosure under FOISA.

Mr Collie challenged the decision by applying to the Scottish Information Commissioner ("SIC"). The SIC was satisfied that living individuals could be identified at census ward level and that the raw information constituted personal data. However, there was a process known as "barnardisation" whereby the information could be statistically manipulated to substantially reduce the risk of identification. The SIC held that the CSA could have offered Mr Collie the barnardised data as part of its duty to provide advice and assistance to applicants. The SIC ordered disclosure of the barnardised data. Crucially, no finding of fact was made that the process of barnardisation produced anonymity for those individuals affected.

The CSA appealed to Inner House of the Court of Session. The appeal was refused and the CSA appealed to the House of Lords.

The House of Lords decided that the matter required to be remitted back to the SIC for reconsideration. There were factual matters upon which no firm findings had been made. The SIC had failed to address whether the barnardised information constituted personal data and had not reached any conclusion on whether "barnardisation" truly made the data anonymous, negating the risk of living individuals being identified.

Despite the decision to remit the matter back to the SIC, the House of Lords has provided useful guidance on this area of the law. Assuming that "barnardisation" would provide anonymity, Lord Hope was of the opinion that disclosure of the barnardised information by the CSA would be doing no more than was reasonable in the circumstances. This was despite the fact that the CSA had not applied the statistical technique to the raw data held by them prior to the request by Mr Collie.

The case highlights that those met with information requests are required to take all reasonable steps to comply with the request, and this duty now extends to include manipulation and alteration of the data that is actually held.

Those met with requests for information under FOISA will still be able to rely on the cost exemption. It was specifically noted in the present case that the process of barnardisation would not have been prohibitively expensive.

Four members of Axiom Advocates were involved in the appeal to the House of Lords. Paul Cullen QC and Morag Ross acted for the Respondent (the SIC), Ruth Crawford acted for the Appellant (the CSA) and John MacGregor acted for the Second Intervener (the Secretary of State for Justice), as junior to The Advocate General for Scotland.

The full report can be located at:

http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd080709/comm-1.htm