Privacy before public's 'right to know'

Increasingly it is not unusual for enterprising journalists to follow up national stories by asking for information from schools quoting the Freedom of Information (FOI) Act. For example, they might ask for figures on staff absence by gender or for exclusion figures by race.

A recent case in the House of Lords suggests that schools should take some care before complying with such requests. The case was a Scottish one, but the same principles apply in England and Wales.

The case involved a request for details of childhood leukaemia cases in a national health area near nuclear reactors. The NHS Trust responsible took the view that the numbers involved were so small that the individuals concerned could be easily identified. This would be a breach of the Data Protection Act (DPA) which prohibits this kind of disclosure, particularly of sensitive personal information (like personal health).

The response to this was a technical argument that 'barnardisation', a statistical method for making numbers anonymous, would sufficiently conceal identities to remove the 'personal' element from the data and so allow the release of this information.

The House of Lords declined to pass judgement on the statistical question, which they stated to be a factual question for the information commissioner to rule on. They did, however, make it clear that privacy comes before open government. The Data Protection Act takes precedence over Freedom of Information.

Members confronted with demands for the release of information where individuals can be readily identified may put themselves and their institutions at risk in law if they release personal information. It will be safer to refuse on the grounds of a clash with the Data Protection Act, await a judgement from the information commissioner and act on that.

For more information on dealing with FOI and DPA requests, see ASCL guidance paper 34.