The National Records of Scotland (NRS), which is responsible for the official recording of all deaths in Scotland and one of the few sources of accurate information on the scale of coronavirus’ impact on the care sector, breached freedom of information legislation by refusing to release the number of confirmed and suspected Covid-19 related deaths in each of Scotland’s care homes.
In a ruling, the Scottish Information Commissioner said the executive agency of the Scottish Government had engaged in arguments that were “speculative in nature” in its attempts to block the publication of the statistics.
The NRS’ attempts to keep care home death figures secret included last gasp interventions from the care sector’s regulator the Care Inspectorate, its representative body Scottish Care, and a coalition of local authority chief executives as part of the Society of Local Authority Chief Executives (SOLACE).
However, following an investigation by the information commissioner, the government body was found to have “failed to comply” with freedom of information legislation.
NRS officials said they would now make the data available in line with the decision, while Scottish Care maintained there was a “real risk” to the health and safety of care home staff with the publication of the data.
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As of May 17, 2021, a total of 3,310 people have died in care homes due to Covid-19, NRS statistics show.
In the eight months since the information request was first submitted to the NRS, 1,335 care home residents have since died from the virus.
Responding to the request, the NRS attempted to claim the data was exempt from disclosure due to data protection sensitivities.
This was rejected by the information commissioner on the basis that “‘personal data’ must relate to living individuals”.
The NRS later attempted to block the release of information based on the possibility of the figures negatively impacting the commercial interests of care home operators.
It also claimed release would risk the health and safety of care home staff and residents.
Both arguments were rejected by the information commissioner on the basis that the arguments were flawed and based on speculative arguments from the record keeper.
In the decision notice, the commissioner stated there is a “strong public interest” in the release of the information and failure to release it would constitute a “lack of transparency”.
He said disclosure was important 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”.
The notice continues: “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.
“In his view, it does not follow that disclosure of the specific information requested in this case would result in the adverse impacts on the care services, staff members, residents and families claimed by the Registrar General.
“The Commissioner does not see how the provision of the information requested on its own can be correlated to the harm claimed by the Registrar General, and to make such a connection based on the disclosure of the information requested appears purely speculative.”
He also rejected the argument that the data would be too complex and would fail to tell the full story of the deaths.
A spokesperson for the National Records of Scotland said: “NRS continues to publish a range of information on COVID related mortality, including where the location of death is a care home.
“Our statistical analysis provides valuable information on characteristics of the deceased as well as presentation at health board and local authority level.
"Following review by the Scottish Information Commissioner of a freedom of information request to release data on individual care homes, NRS will make this data available in line with the original freedom of information request and the timeframe set out by the SIC”.
Responding, a spokesperson for Scottish Care said the data would not offer “context, narrative, or understanding” of how care homes were hit by Covid-19.
In the decision notice, the commissioner said he “does not readily accept, however, that disclosure of the information in this case would lead to any confusion or misinterpretation”.
The spokesperson said: “Scottish Care did not support the publication of this data because it is highly sensitive and risks identifying individual residents where small numbers are involved. This can potentially impact the privacy of individuals involved, the care home and frontline workers. There is a real risk to the health and wellbeing of staff, residents and relatives of the deceased.
“It was the case in March 2020 and it is still the case today that the most vulnerable, frail and elderly, and those with existing health conditions who are at the greatest risk of Covid-19. This fits closely with the needs of our care home residents and makes this population particularly vulnerable.
“The publication of the data in the format in which it was requested does not offer any context, narrative or understanding of the circumstances of the care homes involved. It does not tell the full story of the professionalism, sacrifice and dedication of frontline nursing and care staff who daily put themselves at risk and on the line to protect some of our most vulnerable citizens facing the threat of this deadly global virus.”
A spokesperson for the Care Inspectorate said it would now publish the data it held on care home deaths by individual home and provider after it rejected a similar freedom of information request, currently subject to an appeal with the SIC.
Officials at the regulator had refused to disclose death data on the basis that publication would prejudice commercial interests of care homes, breach confidentiality rules, and pose a health and safety risk.
The regulator added disclosure would also negatively impact Operation Koper, the joint investigation by the Crown Office and Police Scotland into care home deaths from Covid-19, a decision the organisation upheld when asked to review the decision internally.
The spokesperson said: "In considering our submission to the National Records of Scotland on the publication of data, we raised concerns at the time about the impact publication of data relating to deaths in individual care homes during the pandemic would have on the physical or mental health or safety of people experiencing care and those who provide care.
"Further to a request to publish data on deaths that the Care Inspectorate holds, we have recently been informed by the Office of the Scottish Information Commissioner that it is lawful for us to publish data we hold which specifically relates to the deaths in individual care homes during the pandemic.
“Following that confirmation and after internal review, we are preparing data for publication. We have a legal duty to handle any data we hold with care and sensitivity. A statistical bulletin will be published by the Care Inspectorate in due course."
A spokesperson for SOLACE added: "Solace Scotland note the decision taken by the ICO and anticipate that NRS will now take steps to comply.”
The Scottish Government declined to comment.