Freedom of Information and Data Protection (Amendments) (Jersey) Law 201-

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 28 March 2014:

Decision Reference: MD-C-2014-0061
Decision Summary Title :	Freedom of Information and Data Protection (Amendments) (Jersey) Law 201-		Date of Decision Summary:	28th March 2014
Decision Summary Author:	Interim Head of Information Management		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/A
Written Report Title :	Freedom of Information and Data Protection (Amendments) (Jersey) Law 201-		Date of Written Report:	28th March 2014
Written Report Author:	Interim Head of Information Management		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Freedom of Information and Data Protection (Amendments) (Jersey) Law 201-
Decision(s): The Chief Minister decided to lodge “au Greffe” the draft Freedom of Information and Data Protection (Amendments) (Jersey) Law 201-.
Reason(s) for Decision: It is intended that the Freedom of Information (Jersey) Law 2011 will come into force on 1st January 2015 by an Appointed Day Act. It will be necessary for the amendments to the Freedom of Information (Jersey) Law 2011 and the Data Protection (Jersey) Law 2005 to come into force at the same time as the Law in order for the provisions of the Freedom of Information (Jersey) Law 2011 to work effectively after it is brought into force.
Resource Implications: There are no manpower or financial implications arising from this decision.
Action required: The Interim Head of Information Management to request the Greffier of the States to make the necessary arrangements for the draft Freedom of Information and Data Protection (Amendments) (Jersey) Law 201- to be lodged “au Greffe” on 1st April 2014 for debate by the States at the earliest opportunity.
Signature:		Position: Chief Minister
Date Signed:		Date of Decision (If different from Date Signed):

Freedom of Information and Data Protection (Amendments) (Jersey) Law 201-

Report

Introduction

The FOI Implementation Team in the Chief Minister’s Department has been working closely with the Law Officers’ Department in preparation for coming into force of the Freedom of Information (Jersey) Law 2011 (the “Law”). It is anticipated that the Law will come into force on the 1st January 2015.

As work has progressed towards the implementation date for the Law, some difficulties have been identified with provisions of the Law that may cause practical difficulties or have unwanted effects following implementation of the Law. Some difficulties have also been identified with regard to the interaction between the Law and the Data Protection (Jersey) Law 2005 (the “DP Law”).The Freedom of Information and Data Protection (Amendments) (Jersey) Law 201- (the “draft Amendment Law”) is intended to address these issues and has four aims, namely to:

amend Article 16 of the Law to provide a sufficient basis for setting a cost limit separately from the means of calculating a fee.

amend Article 46 of the Law to provide an additional ground concerning compliance with the requirements of Part 2 of the Law to the extent not otherwise covered by the other sub-paragraphs.

amend Article 54 of the Law to:-

provide the Royal Court, on appeal, with an express power to substitute its own decision for that of the Information Commissioner;
provide an express power to make rules of court that would allow the Royal Court to direct that material relevant to the determination of the issues be withheld from some of the parties on appeal and for some of the parties to the appeal to be excluded from part of the proceedings where necessary;

To modify the definition of “data” in the DP Law so that it covers information recorded on paper and held by a public authority that does not fall within the definition of “data” at present.

A full explanation of the effect of the Law is set out in the Explanatory Notes. However, a brief description of the reasons for bringing forward these changes is set out below.

Cost Limit

At present Articles 15 and 16 of the Law allow provision to be made in Regulations so that a fee may be charged for answering an FOI request and so that, if the scheduled public authority estimates that the amount of the fee would exceed a particular level, the request may be refused.

The Chief Minister and the Council of Ministers agree that there should, as is the case in the UK and in other jurisdictions, be a cost limit applied to each request (i.e. a cap on the amount of time and cost that could be incurred in answering the requests). However, Article 16(1) of the Law does not currently provide a sufficient basis for setting a cost limit separately from the means of calculating a chargeable fee.

At present the Council of Ministers does not wish to set a fee for answering requests falling below a cost limit. Further, even if a fee were to be charged in future, the amount of the fee might be determined using a different method than that used to estimate whether the costs limit had been exceeded. So the amount of the cost limit and the method used to estimate whether it may be exceeded in respect of a request need to be capable of being set in a different way from the method of determining any chargeable fee.

To facilitate the setting of a cost limit distinct from the amount of any fee, the draft Amendment Law amends Article 16 so that a request can be refused simply where the Scheduled Public Authority estimates that the costs of compliance with the request would exceed any amount determined in a manner prescribed by the States by Regulations.

Article 46

The appeal provision under Article 46(1) of the Law do not presently provide a basis for an appeal to be made to the Information Commissioner about a public authorities compliance with many of the requirements in Part 2 of the Law. For example, a requester cannot complain to the Information Commissioner about the time taken to answer his or her request or whether the information has been supplied by a reasonable means. In order to ensure that compliance with the requirements of Part 2 of the Law is subject to the same appeal mechanism as other obligations in the Law, including any Regulations made under that Part an additional ground of appeal has been added.

Article 47

Article 47 provides a right of appeal against the decisions of the Information Commissioner under Article 46 of the Law. The grounds for an appeal to the Royal Court are that the decision of the Information Commissioner was not reasonable in all the circumstances.

The principal difficulty with Article 47 of the Law is the absence of an express power for the Royal Court to grant an appropriate remedy in response to the appeal. If a decision of the Information Commissioner is concerned with the application of a number of different exemptions to information covered by a particular request on appeal, the Royal Court may be inclined to allow the appeal in respect of some aspects of the Information Commissioner’s decision under Article 46, but not others. Although the Royal Court may give reasons for its decision, in the absence of specific power the Royal Court cannot substitute a different, decision, which is enforceable under Article 48 of the Law, for that given by the Information Commissioner. In the absence of such a power, the only remedy the Royal Court can grant on a successful appeal is to declare that the Information Commissioner’s decision was not reasonable, which would render it unenforceable. If the requester might have been entitled to information as a result of the appeal decision then they might need to make a fresh request for the same information with that request being subject to a fresh appeals process. That may cause unnecessary expense and delay to requesters and scheduled public authorities in handling duplicate requests and appeals.

The amendment to Article 47 and Article 48 of the FOI Law to provide the Royal Court, on appeal, with an express power to substitute its own decision for that of the Information Commissioner.

Article 54

Article 54 of the Law provides the power to make rules of court under Article 13 of the Royal Court (Jersey) Law 1948 which includes the power to make rules regulating the practice and procedure on any matter relating to the Royal Court under the Law. This provides thepower to make rules of court that are in line with generally accepted principles of natural justice and are compliant with Article 6 European Court of Human Rights (“ECHR”).

General principles of natural justice coupled with the need for legislation to be compliant with Article 6 ECHR usually require that the public and all parties to proceedings are entitled to be present throughout; and that the documents provided to the court for the determination of a matter are seen by all the other parties. However, in respect of appeals in the context of the Law, there will be cases in which it is essential to deviate to an extent from these principles.

Specifically, in some cases it will be necessary for the Royal Court to see the information that is the subject of the request so that the public authority can properly explain its case for applying exemptions to it and the court can check that the scheduled public authority is entitled to an exemption. In those cases the disclosure of the information to everyone participating in the proceedings would defeat the object of the appeal, since there would be no point in the Royal Court deciding whether information should or should not be disclosed, if it already has been.

It is therefore considered necessary to expressly provide the vires to make rules of court which prevent disclosure of material from one or other party and to prevent parties from attending open court, which may otherwise be viewed as contrary to principles of natural justice and Article 6 European Court of Human Rights.

Data Protection (Jersey) Law 2005 Amendments

Article 1 – “data”

Article 25 of the Law provides an absolute exemption from the disclosure obligations in the Law for information that constitutes “personal data” of which either the requestor is the “data subject” (as defined in the DP Law) or where or where the information is the personal data of a “third party” and the supply of the personal data would contravene any of the data protection principles in the DP Law. This exemption is intended to ensure that requests by individuals for their own personal data continue to be handled exclusively under the DP Law rather than the Law. It is also intended to ensure that personal data is not disclosed under the Law when to do so might breach the DP Law.

The current problem is that the definition of “data” in the DP Law is limited and so personal information held in most paper files will not constitute “personal data” for the purposes of the DP Law. As a result the exemption in Article 25 would not have the intended effect in relation to information held in paper files. The amendment will change the definition of “data” in Article 1(1) of the DP Law so that information contained in all paper files held by a public authority will be “data”. This means that personal information found in a public authority’s normal day to day paper files, whatever the content and however structured, can potentially be withheld from disclosure in reliance on the personal data exemption using the Article 25 exemption.

Article 33A

The amendment to the definition of “data” could brings all the rest of the DP Law to bear on the totality of a public authorities’ personal information. The general application of the DP Law to all personal information held by public authorities is not an intended by-product of the change to Article 1 of the DP Law. The purpose of that change is just to ensure that the subject access right and the right of access under the Law work in harmony.

Article 33A achieves the objective of exempting the data controller from all of the substantive obligations of the DP Law in respect of their unstructured manual data except the right of subject access and the sixth principle in so far as it supports that obligation. A similar change was made in the UK when it introduced the Freedom of Information Act 2000 for the same reasons.

Article 9A

A new section 9A to the DP Law is intended to introduce an important qualification to the subject access right to unstructured public authority data.

Firstly, subject access will not be given to unstructured personal data unless the information is expressly described in the request (a request from a data subject for access to his or her own personal data usually has to be met by giving access to all of that subject’s data, without his or her having to specify any of it).

Secondly, even where residual unstructured personal information has been described, the authority can rely on the cost limit prescribed for the purposes of FOI to refuse a request for personal data in so far as it estimates it would cost more than the prescribed limit to meet the request.

Financial, manpower and Human Rights implications

Financial and manpower

There are no financial or manpower implications for the States arising from these amendments.

Human Rights

In accordance with the provisions of Article 16 of the Human Rights (Jersey) Law 2000 the Chief Minister has made the following statement –

In the view of the Chief Minister the provisions of the Freedom of Information and Data Protection (Amendments) (Jersey) Law 201- are compatible with the Convention Rights.

Human Rights

The notes on the human rights aspects of the draft Amendment Law in the Appendix have been prepared by the Law Officers’ Department and are included for the information of States Members. They are not, and should not be taken as, legal advice.

APPENDIX

Human Rights Note on the Freedom of Information and Data Protection (Amendments) (Jersey) Law 201-

This Note has been prepared in respect of the draft Freedom of Information and Data Protection (Amendments) (Jersey) Law 201- (“the draft Amendment Law”) by the Law Officers’ Department. It summarises the principal human rights issues arising from the contents of the draft Amendment Law and explains why, in the Law Officers’ opinion, the draft Amendment Law is compatible with the European Convention on Human Rights (“ECHR”).

Article 6 ECHR – Right to a Fair Trial

Article 54 to the draft Amendment Law contains provisions for rules of court in connection with proceedings under the Law. In particular, the draft Amendment Law includes arrangements for restricting the disclosure of evidence. Such arrangements might be necessary in the context of appeals under the Law where, for example, to disclose the information to the parties to the appeal may frustrate the purposes of the appeal. It may also be necessary where for reasons of security or if it is contrary to the public interest, it is not possible to disclose to a party to the proceedings, or to any legal representative, material or information relevant to the proceedings under Article 47.

Such procedures might be referred to as “closed material procedures” and involve a departure from the normal principles of natural justice by preventing one party from attending court or seeing all the evidence relevant to their appeal. However, they need not be incompatible with Article 6 of the ECHR and the right to a fair trial. Taking into account the decision of the UK Supreme Court in Home Office v Tariq [2011] UKSC 35, a closed material procedure can be adopted in a manner compatible with Article 6 of the ECHR, provided that there is an express vires to make rules of court regulating such procedures and their adoption is proportionate in the particular context in which they are employed.

Closed material procedures are used in respect of appeals against decisions of the Information Commissioner in the UK and there is no reason why they their use should not also be compatible with Article 6 of the ECHR in Jersey. Therefore providing the vires to make Rules of Court that permit a closed material procedure to be adopted is compatible with Article 6 of the ECHR.

The draft Amendment Law is therefore compatible with Article 6 ECHR.

No other provisions of the ECHR are engaged by the draft Amendment Law.