Clinical and Quality Lead (FOI)Clinical and Quality Lead (FOI)
Produced by the Freedom of Information officeAuthored by Government of Jersey and published on
30 March 2022.Prepared internally, no external costs.
Request
A
Could you please tell me who was on the interview panel for the Clinical and Quality Lead, Martin Warnette?
B
When and where was this job advertised?
C
How many people were short listed for this post?
D
Who was on the short listing panel?
E
Please provide a CV of this person's experience over the last 10 years.
Response
A
Group Managing Director – Rob Sainsbury
Associate Managing Director – Jo Poynter
Director of Improvement and Innovation – Anuschka Muller
ED Consultant and Associate Medical Director – Adrian Noon
B
The role was advertised on www.gov.je and the Government of Jersey Intranet - MyStates, in March 2021
C
Four people were shortlisted for interview.
D
As per Response A.
E
A Curriculum Vitae is personal information, and in order to protect the privacy of the individual, Article 25 of the Freedom of Information (Jersey) Law 2011 has been applied.
Article Applied
Article 25 - Personal information
(1) Information is absolutely exempt information if it constitutes personal data of which the applicant is the data subject as defined in the Data Protection (Jersey) Law 2018.
(2) Information is absolutely exempt information if –
(a) it constitutes personal data of which the applicant is not the data subject as defined in the Data Protection (Jersey) Law 2018; and
(b) its supply to a member of the public would contravene any of the data protection principles, as defined in that Law.
Internal Review Request
The Freedom of Information (FOI) request relating to Martin Warnette, the HCS Clinical and Quality Lead, was received by Health and Community Services (HCS) on 03 March 2022. A response was provided to the applicant on 30 March 2022.
The response answered a number of questions relating to Martin Warnette and question five requested:
E
Please provide a CV of this person’s experience over the last 10 years
In order to respond to this request, HCS applied Article 25: Personal Information, stating:
E
A Curriculum Vitae is personal information, and in order to protect the privacy of the individual, Article 25 of the Freedom of Information (Jersey) Law 2011 has been applied.
Following receipt of the FOI response, the applicant requested an Internal Review on 30 March 2022, and querying the use of Article 25 of the Freedom of Information (Jersey) Law 2011. The applicant advised that they “have requested the work experience of this person which is not personal information”.
Internal Review Response
On the 31 March 2022, the Caldicott Guardian and GMC Responsible Officer, and the Government of Jersey Data Protection Officer were asked to undertake the Internal Review. Neither party had been involved in the original decision to apply Article 25 (personal information). The in-scope FOI response and the Internal Review Procedure were shared with both reviewers on this day.
The Internal Review was coordinated and administered by the HCS Information Governance Manager, and took place on 07 April 2022 at Jersey General Hospital.
Both the Caldicott Guardian and GMC Responsible Officer, and the Government of Jersey Data Protection Officer were asked to consider whether:
- the Freedom of Information Law (Jersey) Law 2011 has been properly applied and whether the information requested genuinely falls within the exemption(s) cited
- there were any other options available in order to respond to the request
- it’s possible to provide you with any further information, and
They will also provide an outcome of the internal review by stating whether:
- the original decision is upheld, or
- the original decision is reversed in part or in full, or
- the original decision is modified
Has the exemption been properly applied?
The exemption cited was Article 25: Personal Information of the Freedom of Information (Jersey) Law 2011, which states:
(1) Information is absolutely exempt information if it constitutes personal data of which the applicant is the data subject as defined in the Data Protection (Jersey) Law 2018.
(2) Information is absolutely exempt information if –
(a) it constitutes personal data of which the applicant is not the data subject as defined in the Data Protection (Jersey) Law 2018; and
(b) its supply to a member of the public would contravene any of the data protection principles, as defined in that Law.
(3) In determining for the purposes of this Article whether the lawfulness principle in Article 8(1)(a) of the Data Protection (Jersey) Law 2018 would be contravened by the disclosure of information, paragraph 5(1) of Schedule 2 to that Law (legitimate interests) is to be read as if sub-paragraph (b) (which disapplies the provision where the controller is a public authority) were omitted.
As the applicant was not the data subject as defined in the Data Protection (Jersey) Law 2018, Article 25 (2)(a) is relevant in this case.
Personal data for the purpose of the Data Protection (Jersey) Law 2018 is defined as:
Article 2: Personal data and data subject
(1) Personal data means any data relating to a data subject.
(2) A data subject is an identified or identifiable, natural, living person who can be identified, directly or indirectly, by reference to (but not limited to) an identifier such as –
(a) a name, an identification number or location data;
(b) an online identifier; or
(c) one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the person.
As a Curriculum Vitae (CV) is provided by a prospective employee at the time of recruitment as a precis of their suitability to meet the eligibility criteria for a role, the information contained therein, identifies and relates to them as an individual and is therefore ‘personal data’.
In reviewing whether the CV is ‘personal data’, and having reviewed the definitions as stated in the relevant legislation, it was agreed that the application of Article 25: personal information was appropriate in this case.
Were there any other options available?
Article 12 of the Freedom of Information (Jersey) Law 2011 places a duty on Scheduled Public Authorities to make reasonable efforts to provide sufficient advice and assistance to applicants. Whilst agreeing that the use of Article 25 was appropriate, we also reviewed whether:
- there were any other options available when responding to this FOI request
- it is in the legitimate interest of the applicant (and subsequently the wider public) to disclose the ‘personal information’ irrespective of the impact on the privacy of the employee.
Other options
A
The request specifically stated that the applicant wished to see a CV of the previous 10 years of experience. Freedom of Information legislation is clear that it is designed to enable transparency and accountability in relation to ‘information held’ by a Scheduled Public Authority:
Article 3: Meaning of “information held by a public authority”
For the purposes of this Law, information is held by a public authority if –
(a) it is held by the authority, otherwise than on behalf of anoher person; or
(b) it is held by another person on behalf of the authority.
Subsequently, there is no requirement to create information or manipulate information for the purpose of responding to an FOI request. HCS does not hold a ‘CV’ for the employee that outlines this information in the manner in which it has been requested and therefore the information is not held by the Scheduled Public Authority. Consequently, Article 3 could have been applied to the original request.
B
HCS does hold the CV as provided as part of the recruitment process by the employee. This information was provided to HCS in order for the employee to identify themselves, and their related relevant experience, to a prospective employer. At this point, the information would have been supplied in confidence to the employer:
Article 26: Information supplied in confidence
Information is absolutely exempt information if –
(a) it was obtained by the scheduled public authority from another person (including another public authority); and
(b) the disclosure of the information to the public by the scheduled public authority holding it would constitute a breach of confidence actionable by that or any other person.
An individual applying for a role within any organisation would not have expected that their personal information, in the form of their CV, would be disclosed publicly. Therefore, Article 26 could have been considered in response to the original request.
C) The Freedom of Information (Jersey) Law 2011 allows for information to be exempt from disclosure if it is accessible via alternative means i.e. information is already in the public domain:
Article 23: Information accessible to applicant by other means
(1) Information is absolutely exempt information if it is reasonably available to the applicant, otherwise than under this Law, whether or not free of charge.
(2) A scheduled public authority that refuses an application for information on this ground must make reasonable efforts to inform the applicant where the applicant may obtain the information.
HCS has responded to numerous FOI requests relating to this employee:
- Other publicly available information
The employee has a social media presence, including a profile on LinkedIn that provides significant information relating to skills and experience.
On considering whether Article 23 may have been used in order to respond to the request, it was found that the previous FOIs were responded to in November 2019, January 2020, February 2020 and October 2020 respectively. The employee has since been employed on a permanent basis as a Clinical and Quality Lead and so previous FOI responses do not answer the most recent question relating to skills and experience, the subject of this Internal Review.
However, the employee does have a social media presence and significant information about their roles and experience on LinkedIn. Therefore, Article 23 of the Freedom of Information (Jersey) Law 2011 could have been considered and the original response to the FOI request could have included links to the Social Media presence as described above.
Freedom of Information legislation is designed to further the aim of greater openness and transparency by enabling ready access to public information. Whilst it has been established that the CV of an employee is personal information, the Internal Review considered whether the public interest in employees of HCS being in roles that are closely aligned with their skills, expertise and experience outweighed the employee’s right to privacy.
The process for recruitment includes a matching of the eligibility criteria with the information provided by the prospective employee. The shortlisting process identifies those individuals who have provided relevant information and have the requisite skills and experience. The information provided by a shortlisted candidate is stress-tested via a formal interview, and reference checks.
The original response outlined the names of those on the recruitment panel, those that shortlisted the candidates, whether the post was advertised and the number of people shortlisted for interview. The adherence to the recruitment protocols provides assurance that the employee has been closely matched to the eligibility criteria for the role.
It is acknowledged that where there is a request relating to executive level employees, that their employment and attributable skills are under more scrutiny as they will be making strategic and operational decisions for HCS which will impact and effect key services at the highest level, leading to increased responsibility and accountability. It is also acknowledged that there is likely more public interest in disclosing information about the skills and experience that an executive level employee holds for these reasons.
However, and in relation to this data subject, this Tier 3 role does not sit at Executive Level within HCS.
When responding to requests of this nature, HCS has to balance the public interest with the impact on privacy that responding to the request may have on the employee. HCS’ duty of care to the employee is especially important when there has already been significant scrutiny in relation to this employee and their appointment, skills and experience.
HCS is also concerned that the repeated requests are an attempt to undermine the employee publicly and that further requests may cause the employee distress and impact their wellbeing. The most recent FOI request for this employee was received along with five others requesting similar information relating to other employees.
Concern regarding the potential impact on the employee is further raised by this being the fifth request for information relating to them. HCS has a duty of care to its employees and seeks to avoid repeated and invasive requests relating to them. Continued management of repeated requests relating to an employee has no value to the organisation or the applicant and is an administrative burden. Therefore, the Article 25 (personal information) exemption was appropriately applied as the public interest in disclosing the information is outweighed by the employee’s right to privacy and HCS’ duty of care to the employee.
Is it possible to provide you with any further information?
In order to ensure that it is clear that all the information that will be provided has been, the following links and information have been collated and made available here:
The job description has not been previously supplied as part of a response to an FOI, but was made public at the time of the appointment being advertised. However, it is supplied now in order to demonstrate that there is no requirement for clinical qualifications to meet the role and is attached.
The previous FOI responses can be found via the following link:
Information is accessible via the employee’s LinkedIn profile (LinkedIn is searchable by name)
Outcome
In applying the Article 25 (personal information) to Q5, HCS appropriately applied an absolute exemption in order to protect the privacy of an individual. It is agreed that there is little public interest in responding to continued requests for information relating to the employee, who is not in an executive position, and the original decision is upheld.
The internal review also reviewed other exemptions that may have been applied. Had the use of Article 3 (information not held) and Article 26 (information supplied in confidence) been fully explored, the outcome may have remained the same, in that no information would have been disclosed.
However, the Internal Review did find that Article 23 (information accessible by other means) could have been applied, and was more in line with HCS’ responsibility to advise and assist applicants. In order to meet the requirements of Article 23, the information previously and publicly made available has been provided in the links above.
gov.je