Government of Jersey

Agency costs and expenses for Locums (FOI)

Produced by the Freedom of Information office
Authored by Government of Jersey and published on 02 October 2023.
Prepared internally, no external costs.

Request

Please advise how much a middle grade Locum, employed by an agency for the department of obstetrics and gynaecology, costs the Government of Jersey in terms of their hourly rate of pay, Locum fees, insurance, travel and accommodation, for the department of obstetrics and gynaecology.

Response

Costs for a Locum doctor will vary according to several factors, including number of on-call shifts that could be worked, which are paid at different rates. The contract of services is commercially sensitive and as such, Health and Community Services (HCS) considers that disclosure of information such as rates of pay or agency fees would likely prejudice the commercial interests of the department, or others. Therefore, Article 33(b) of the Freedom of Information (Jersey) Law 2011 has been applied.

Article applied

Article 33 - Commercial interests

Information is qualified exempt information if –

(a) it constitutes a trade secret; or

(b) its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the scheduled public authority holding the information).

Public Interest Test

Article 33 is a qualified exemption and as such, HCS has conducted a prejudice test as required by law. Disclosing information relating to contractual service arrangements is likely to prejudice the commercial interests of HCS and others. When considering the application of this exemption, HCS has determined that whilst it is in the public interest to disclose information, this is outweighed by the necessity to limit any impact on its commercial interests in contracting future Locum clinician services and as such, Article 33(b) has been applied.

Internal Review Request

The Freedom of Information (FOI) request seeking specific costs for an Obstetric and Gynaecology Middle Grade Locum was received by Health and Community Services (HCS) on 22 September 2023. A response was provided to the applicant on 2 October 2023.

Following receipt of the FOI response, the applicant requested an Internal Review on 4 October 2023 querying the limitations of the detail provided in the response in consideration of Article 33 of the Freedom of Information (Jersey) Law 2011.

The applicant contacted the Central FOI Unit to request an Internal Review, as follows:

“I’m afraid this hasn’t answered my question. I have been informed by a senior manager that internal locum rates should not be increased to the requested level (at the LNC), because it would be cheaper to get an external locum. I suspect that this is not the case, given that external locums attract an hourly rate, along with the other expenses that I listed in my original request. So please can my original question be looked at again.”

Internal Review Response

On the 16 October 2023, the HCS Medical Director and the Head of Medical Staffing were asked to undertake the Internal Review. Neither party had been involved in composing the original response or in the original decision to apply Article 33 (commercial interests).

The Internal Review was coordinated and administered by the HCS FOI Officer, and took place on 25 October 2023 at Jersey General Hospital. The in-scope FOI response and the Internal Review Procedure were shared with both reviewers on this day.

Both the HCS Medical Director and the Head of Medical Staffing 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 is 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

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Has the exemption been properly applied?

The exemption cited was Article 33: Commercial interests - Freedom of Information (Jersey) Law 2011, which states:

Information is qualified exempt information if –

(a) it constitutes a trade secret; or
(b) its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the scheduled public authority holding the information).

As the information requested is considered commercially sensitive, relating to specific costs for services which need to be contracted and negotiated frequently, Article 33(2) is relevant in this case. Article 33 is a qualified exemption, and as such, a prejudice test was carried out when considering the application of this exemption to the original request, as required by law.

Having reviewed the definitions as stated in the relevant legislation, and the public interest test justification, it was agreed that the application of Article 33: commercial interests was appropriate in this case, as the public interest in disclosing the information requested is outweighed by the necessity to limit any impact to HCS’ commercial interests in contracting future Locum services.

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 33 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 information requested, irrespective of the impact upon the commercial interests of HCS and / or others.

Other options

A) Within the original request, the applicant gives rationale for the FOI query as being able to compare the costs of using external Locums with those for substantively employed doctors. Consideration could, therefore, have been given to Article 39 of the Freedom of Information (Jersey) Law 2011, which states:

Article 39 - Employment

Information is qualified exempt information if its disclosure would, or would be likely to, prejudice pay or conditions negotiations that are being held between a public authority and –

(a) an employee or prospective employee of the authority; or
(b) representatives of the employees of the authority.

HCS has concluded that disclosing the hourly rates of pay and costs requested would, or would be likely to, prejudice pay negotiations between the Scheduled Public Authority (in this case, HCS) and employees of the authority. As such, Article 39 (employment) could have been applied following a prejudice test.

Legitimate interest

Freedom of Information legislation is designed to further the aim of greater openness and transparency by enabling ready access to public information.

When responding to requests of this nature, HCS has to balance the public interest with the impact that disclosing this information would, or would be likely to, have upon the organisation and / or third parties. Whilst it may be in the public interest to understand the comparative costs of using internal or external resources, protecting the commercial interests of HCS is an essential component in controlling public finances, which in itself is in the public interest. The Article 33 (commercial interests) exemption was appropriately applied in line with the prejudice test, which concluded that the likely impact upon HCS’ commercial interests outweighed the public interest in disclosing the specific costs.

Is it possible to provide you with any further information?

It was agreed that, whilst the application of Article 33 was appropriate, greater detail of the justification for this exemption could have been provided in the public interest test. The following additional information should be noted in favour of the application of Article 33 (commercial interests):

the service contract for Locum provision is currently out for tender, and as such, disclosing Locum rates could prejudice the tender process and have a detrimental effect on contract negotiations.

Whilst it is not possible to disclose the specific costs requested, HCS can confirm that the hourly rate paid for Locum doctor services (inclusive of agency fees) is significantly less than the British Medical Association’s Staff, Associate Specialist and Specialty Doctors’ (BMA SAS) rate card. Furthermore, HCS can confirm that after factoring in travel, accommodation and any other sundry costs, contracting agency Locum doctor services is economically favourable to using substantively employed doctors / internal Locums to cover the timeframes outlined in the original request.

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Outcome

It was agreed that HCS appropriately applied a qualified exemption (Article 33: commercial interests), in consideration of the public interest in disclosing the requested information weighed against the prejudice to HCS’ commercial interests and / or those of third parties that would likely result, in order to limit the impact upon the commercial interests of HCS in negotiating future service contracts. Therefore, the original decision is upheld.

The internal review also reviewed other exemptions that may have been applied. Had the use of Article 39 (employment) been fully explored, the outcome may have remained the same, in that no information would have been disclosed.

Of note, the internal review request elaborates upon the information provided in the original request, detailing that the matter of internal versus external Locum rates has been raised in negotiations for an increased rate of pay for internal Locum services. Had this information been included in the original request, both Article 33 (commercial interests) and Article 39 (employment) could have been applied, as sufficient justification exists in favour of each exemption.