from Sunday Herald, 02 October 2005
THE Scottish Information Commissioner, Kevin Dunion, is being taken to court by the National Health Service in an attempt to keep controversial cancer statistics secret.
This is the first legal challenge to Dunion, who has been overseeing the Freedom of Information (FOI) Act since it came into force at the beginning of the year. The NHS says it has taken the action to protect patient confidentiality.
The case, to be heard at the Court of Session in Edinburgh, is unprecedented – it is the first time that the Scottish Executive’s ground-breaking FOI legislation will be tested in court.
In January, Chris Ballance, the Green MSP for the South of Scotland, asked the NHS Common Services Agency (CSA) to provide the annual incidence of childhood leukaemia in every Census ward in Dumfries and Galloway from 1990 to 2003.
There have long been suspicions that clusters of the potentially fatal blood cancer could have been caused by radioactive pollution.
Plutonium from the Sellafield nuclear plant washes up on the Solway coast, and depleted uranium shells have been tested at the Dundrennan military range near Kirkcudbright. Scotland’s oldest nuclear station, which is now being decommissioned, is at Chapelcross, near Annan.
But the CSA refused to provide Ballance with the information on the grounds that the small number of cases in some areas might enable individual patients still alive to be individually identified. As a result, Ballance lodged Scotland’s first FOI appeal with Dunion on January 27.
After a six-month investigation, Dunion upheld Ballance’s appeal on August 15 and ordered the CSA to supply the information within 42 days. The statistics could be presented in a way that prevented the potential identification of individuals, Dunion argued.
“In making my decision in this case, I have sought to achieve a balance, which provides reassurance to individual patients about their right to privacy and respects the wider public right to information on health issues,” he said.
But Dunion’s decision has now been rejected by the CSA, which lodged an appeal at the Court of Session on Friday. The CSA, now known as National Services Scotland, did not announce its move.
But a spokeswoman said: “Having considered the Scottish Information Commissioner’s decision in relation to this request and its implication for NHS Scotland’s ability to protect patient confidentiality, National Services Scotland has decided to appeal against the decision.”
Dunion said: “I can confirm that I have been notified that the Common Services Agency has appealed one of my decisions to the Court of Session. I am taking legal advice on the appeal.”
Both the CSA and Dunion declined to comment further. Chris Ballance, however, was angered by the CSA’s move.
“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.”
Ballance accused the CSA of having something to hide. “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, Dunion’s office at Kinburn Castle in St Andrews has been flooded with more than 400 appeals against public organisations which have refused to provide information. He has issued 27 decisions, closed a further 79 cases and is still investigating more than 300 others.
As well as formal applications under the Freedom of Information (Scotland) Act and the Environmental Information Regulations, Dunion’s staff also handle inquiries about the legislation. To date they have dealt with 2262 inquiries.
The Information Commissioner in England, Richard Thomas, has been swamped with more than 1600 appeals over the past six months. Final judgments have been reached in fewer than 50 cases and only another 380 have been withdrawn or resolved.
A Whitehall unit called the Central Clearing House is blamed for blocking as many FOI requests to government departments as it can. It has recently advised civil servants that they could chose to “neither confirm nor deny” whether their departments even hold the information requested by the public.
Tim Ellis, head of the Freedom of Information Unit at the Scottish Executive, told a recent conference that the Executive had handled 1400 FOI requests since the start of the year.
About 60% of the inquiries have come from the media, with 54 journalists from 30 different newspapers putting in requests.
In July, the Scottish Executive said that it had refused to provide some information to more than a third of those who had asked. This includes information on public subsidies paid to farmers and details of instances in which the Executive is accused of breaching European law, requested by the Sunday Herald.
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