Coronavirus care home death statistics were unlawfully kept secret by a department of the Scottish Government, the Scottish Information Commissioner has ruled.
National Records of Scotland (NRS), an agency of the Government responsible for recording deaths, withheld the number of confirmed and suspected Covid-related deaths in each of Scotland’s care homes.
The Scottish Government agency breached freedom of information (FoI) legislation by not releasing the figures and used a range of spurious and irrelevant excuses to try and justify its refusal to an FoI request, the commissioner found.
The commissioner concluded that various reasons the NRS gave to avoid revealing the number of deaths in specific care homes were “speculative”.
One of the excuses made by the Registrar General – the role held by NRS chief executive Tim Ellis – was that releasing the statistics would be a breach of data protection law.
However, this reason was eventually withdrawn because the legislation can only apply to people who are still alive.
Mr Ellis then attempted to argue the information could be “highly misleading when presented out of context”, despite the Freedom of Information (Scotland) Act 2002 explicitly stating that the possibility of data being misinterpreted should not be considered in any public interest test.
He also cited objections by other organisations, including the Care Inspectorate, Scottish Care and the Coalition of Care and Support Providers in Scotland, to support the refusal and claimed it could damage the reputation of care homes and care providers.
In the adjudication, the information commissioner said the Registrar General had been unable to prove the publication of care home deaths would amount to “substantial prejudice” of the industry or specific care homes.
The information commissioner found the information requested was purely factual, and stated: “Having considered all of the public interest arguments provided by the Registrar General, the commissioner is of the view that a number of the submissions are speculative.
“The commissioner acknowledges that, at times, information disclosed can be misinterpreted.
“The commissioner does not readily accept, however, that disclosure of the information in this case would lead to any confusion or misinterpretation.”
Ordering the Registrar General to provide the requested information to the person who submitted the FoI request or face a possible contempt of court charge, the report concludes: “The commissioner considers there is a strong public interest in disclosure of the information, to ensure that older people and their relatives have the necessary information to make an informed decision when choosing a care home or care home provider.
“He considers that to deny those individuals the access to this relevant information would indeed be a lack of transparency, which is not in the public interest. ”
A spokesman for the NRS confirmed the data on individual care homes would be provided no later than June 28, as demanded by the information commissioner.
Asked about the verdict, First Minister Nicola Sturgeon insisted the refusal to publish the data had not “masked the scale of care home deaths”.
Speaking at a Scottish Government coronavirus briefing on Friday, she said: “The total number of people who sadly lost their lives to Covid-19 who were residents in care homes has been reported, so there is no masking of the scale of that.
“This was an issue about the publication of data that allowed that overall number to be broken down to individual care homes – that wouldn’t have changed the overall number.”
Stressing that NRS is an “executive agency” and so acted independently of Government ministers, Ms Sturgeon said “transparency and scrutiny is really important for all sorts of different reasons”.
She added: “There is an absolute determination on the part of me, everybody in the Government and I think all of us to learn on every possible lesson from what we’ve been through in the past 14 months, so that we can have proper scrutiny and accountability.
“But, more fundamentally, so that we can learn the right lessons – that’s why I want to see a public inquiry get up and running as quickly as possible, but it’s also why we will continue to learn the lessons as we go from the data.
“That includes in care homes, and many of those lessons that have been painfully learned over the past year have led to a material change in the situation in care homes in the second wave of this virus to that pertained in the first.”
Scottish Labour leader Anas Sarwar described the actions of the Government agency as “utterly shameful”.
He said: “This is another devastating blow for the care home residents and families who have been denied justice.
“Those responsible must be held accountable and lessons must be learned.
“We need a Scottish public inquiry without delay.”
Asked whether the organisation had made any changes to ensure information will not be wrongly withheld in future, and if the Registrar General will continue in the role, NRS refused to answer.
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