In the recently decided case of the Department of Health v The Information Commissioner, the DH was appealing a decision of the information tribunal which in turn upheld a decision of the Information Commissioner that the DH was required to publish certain statistics on late terminations carried out on medical grounds.

The way in which these statistics were presented by the DH did not disclose the exact number of late terminations carried out under section 1(1)(d) of the Abortion Act 1967 which permits medical termination of pregnancy with no gestational limits provided that two medical practitioners agree that there is a substantial risk that the child will suffer physical or mental abnormalities to such a degree that the child would be considered to be seriously handicapped. A pro-life group requested a full statistical breakdown of the data which was refused by the DH.

The Commissioner concluded that the information was not personal data and on appeal the tribunal held that the information did constitute personal data under the Data Protection Act 1998 but that disclosure did not contravene data protection principles.

On appeal from the tribunal’s decision, the court held that the tribunal had erred in holding that the information was personal data and held that anonymised data which would not lead to the identification of a living person was not personal data and publication was therefore appropriate.

This case sends out a clear message that it will be very difficult for any NHS organisation to withhold statistical evidence on the grounds that it constitutes personal data within the meaning of the Data Protection Act unless it is possible to identify individuals from that data.