External Relations Minister's email correspondence February to May 2022 (FOI)

Original Request

Please provide all email correspondence (Inbox, Sent, Drafts) between the dates of 1 February 2022 and 1 May 2022 that include any of the words "[name redacted 1]", "[name redacted 2]", "[name redacted 3]", "[name redacted 4]", "[name redacted 5]", "[name redacted 6]", "[name redacted 7]", "[name redacted 8]", "[name redacted 9]" and for then-External Minister Ian Gorst. Please include any attachments to emails.

Original Response

Searches were undertaken on the email account of Deputy Ian Gorst for the period of 1st February to 1st May 2022 that included all of the key words listed. No relevant information was held in respect of search 5.

Please see correspondence attached in respect of search 8. Names of individuals have been redacted under Article 25 (Personal information) of the Freedom of Information (Jersey) Law 2011. 

Email Redacted.pdf

Emails and attachments have been withheld from release in accordance with the following Articles of the Freedom of Information (Jersey) Law 2011: 

• Article 25 - (Personal Information) 
• Article 26 - (Information Supplied in Confidence)
• Article 31- (Advice by the Bailiff, Deputy Bailiff or a Law Officer)
• Article 41 - (International Relations) 

Duplicates, and correspondence that is not relevant to the request have been removed.

Articles applied 

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 another person; or

(b)     it is held by another person on behalf of the authority.

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 2005.

(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 2005; 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.

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.

Article 31 - Advice by the Bailiff, Deputy Bailiff or a Law Officer

Information is qualified exempt information if it is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General.

Public Interest Test

The public interest in disclosing correspondence when this Article is being applied must weigh particularly heavily in favour of disclosure in order to outweigh the inherent right to privilege. It is not considered the public interest in disclosing the correspondence is outweighed by that in maintaining the exemption, as it is designed to protect the constitutional Law Officer privilege.

Article 41 - International relations

(1) Information is qualified exempt information if its disclosure would, or would be likely to, prejudice relations between Jersey and –

(a) the United Kingdom;

(b) a State other than Jersey;

(c) an international organization; or

(d) an international court.

(2) Information is qualified exempt information if its disclosure would, or would be likely to, prejudice –

(a) any Jersey interests abroad; or

(b) the promotion or protection by Jersey of any such interest.

(3) Information is also qualified exempt information if it is confidential information obtained from –

(a) a State other than Jersey;

(b) an international organization; or

(c) an international court.

(4) In this Article, information obtained from a State, organization or court is confidential while –

(a) the terms on which it was obtained require it to be held in confidence; or

(b) the circumstances in which it was obtained make it reasonable for the State, organization or court to expect that it will be so held.

(5) In this Article –

“international court” means an international court that is not an international organization and that was established –

(a) by a resolution of an international organization of which the United Kingdom is a member; or

(b) by an international agreement to which the United Kingdom was a party;

“international organization” means an international organization whose members include any two or more States, or any organ of such an organization;

“State” includes the government of a State and any organ of its government, and references to a State other than Jersey include references to a territory for whose external relations the United Kingdom is formally responsible.

Public Interest Test

The public interest in respect of Article 41 is weighted in favour of maintaining the exemption unless equally strong countervailing public interest arguments favour the disclosure of the correspondence. It is recognised that there is a public interest in providing transparency about the island's network of international agreements. However, having considered the public interest, the Scheduled Public Authority concluded that the public interest in disclosing correspondence at this time is outweighed by the public interest considerations in withholding the correspondence, in support of the Island's interests and to avoid any potential prejudice to the Island's relationship with the United Kingdom and other jurisdictions.

Internal Review Request

I am requesting an internal review of the above FOI response.

I believe the response is deficient and goes against the spirit of the FOI laws in Jersey. In particular:

In it's highly improbably that only a single email deemed to be fit for disclosure, especially after the FOI office delayed the publication of for multiple weeks.

While an FOI response is allowed to redact the names due to privacy concerns, the decisions related to [redacted] are political and relate to the inner workings of the Jersey Government and thereby fit the criteria of the public interest. 

Please review and provide further disclosable emails.

Internal Review Response

This review has been completed by two senior staff members of the Government of Jersey, independent of the original decision-making process.

The original response has been reviewed and assessed to identify whether the application of the exemption had been applied correctly and whether it was appropriate to withhold information.

It was concluded that Article 42(g) – Law enforcement of the Freedom of Information (Jersey) Law 2011 should have been applied in this instance and not Article 41 – International relations.

Therefore, the decision to withhold the information is maintained and the required public interest test is provided below.

Article applied

42      Law enforcement

Information is qualified exempt information if its disclosure would, or would be likely to, prejudice –

(g)     the proper supervision or regulation of financial services; or

Public Interest Test

Article 42 is a qualified exemption, which means that consideration must be given to both the reasons for releasing the information, balanced against the reasons for withholding it. 

Factors that support releasing the information 

• disclosure of the information would support transparency
• disclosure would promote accountability to the general public
• disclosure would provide confirmation that necessary actions are taking place. 

On balance, it is considered that the withheld information is exempt from disclosure under Article 42(g) of the Freedom of Information (Jersey) Law 2011, which states that information is exempt from publication if its disclosure would, or would be likely to, prejudice the proper supervision or regulation of financial services within the island.

An assessment has been made as to whether, in all the circumstances, the public interest in supplying the information is outweighed by the public interest in not doing so. It is recognised that there is a public interest in providing information about the work of the Financial Services directorate in a transparent manner, however, this must be balanced against the  need to keep certain correspondence and information confidential to avoid potential prejudice to the proper supervision or regulation of financial services on the island. 

It has been concluded that the public interest in disclosing the withheld information is outweighed by the potential prejudice that such disclosure would or is likely to do to the work of the directorate in this instance. The Jersey Office of the Information Commissioner has published guidance on its approach to the public interest provision¹.   The approach is to weigh:

• The public interest in transparent administration; 
• The public interest in confidentiality when it arises.
  

[¹] https://jerseyoic.org/resource-room/the-public-interest-test/.