Paradise Papers email correspondence (FOI)

Request

All emails sent and received by Senator Ian Gorst, Senator Alan Maclean, Senator Sir Philip Bailhache and chief executive Charlie Parker between 25 October 2017 and 10 November 2017 that contain the words 'Paradise Papers', 'Appleby', or 'leak'.

If possible, all emails sent and received by Mr Stephen Hardwick between 25 October 2017 and 10 November 2017 that contain the words 'Paradise Papers', 'Appleby', or 'leak'.

Response

All emails which are relevant to the subject matter have been examined and where appropriate exemptions have been applied. The scheduled public authority (SPA) has considered redaction of the emails but believes that the level of redaction required would render the remaining text valueless. The exemptions applied are detailed below.

Exemptions applied

Article 3 - Meaning of information held by a public authority

The SPA has received email correspondence and / or attachments through subscriptions and / or membership of certain bodies which is then provided to Ministers. This type of information has been the subject of comment in guidance issued by the UK Information Commissioner. That guidance provides that information generated by third party online resources is not considered to be held by the public authority. Given the information in question is controlled by another person and the SPA has not, at its own discretion, created, recorded, filed or removed the information, the SPA do not consider this information to be held for the purposes of Article 3 of the Freedom of Information (Jersey) Law 2011 (FOI Law), which sets out the meaning of “information held by a public authority” (see below).

Article 25 – Personal Information

Personal information is absolutely exempt under Article 25 of the FOI Law. To disclose personal information would be in breach of one of the data protection principles under the Data Protection (Jersey) Law 2005.

Article 34 - The economy

The SPA considers that should some of the detail contained be released it would harm Jersey’s economic interests. Article 34 is a qualified exemption. It also requires the scheduled public authority to consider if those financial interests would be prejudiced by the disclosure of the information requested. The prejudice must be real, actual and of substance with a causal link between disclosure and the prejudice claimed.

The publication by the media of the so called Paradise Papers raised issues pertinent to policy development that was already under way and is ongoing. If information were to be disclosed, it is likely that it would have an effect on Jersey’s economic interests. It does not consider the public interest will be served by its disclosure and that maintaining the exemption far outweighs the public interest in disclosing the information.

Article 35 - Formulation and development of policies

Following the publication of the so-called Paradise Papers, Ministers and senior members of staff discussed what impact that this could have on Jersey, especially in the light of ongoing policy development and discussions concerning the EU Code of Conduct Group on Business Taxation. These discussions are ongoing.

The SPA is therefore withholding the release of the emails they relate to the formulation and development of policy by the public authority. Article 35 is a qualified exemption, which means that a public interest test is required to be undertaken by the SPA. It is therefore necessary for the scheduled public authority to examine the circumstances of the case. Following assessment the scheduled public authority has to decide whether, on balance, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

Although there is a need for transparency, accountability, financial and good decision making by public authorities this information relates to an ongoing situation. The SPA needs the ability to consider and reconsider the assumptions and evaluations raised within the situation for the purpose of good government. For this reason, on balance, it is considered it would not be in the public interest to disclose this information and accordingly the public authority maintains this exemption. The Government needs safe space in which to rigorously explore and develop the best policy possible.

Once a policy is formulated and published, the public interest in withholding information relating to its formulation is diminished. However, the use of the exemption can be supported if it preserves sufficient freedom during the policy formulation phase to explore options without that process being hampered by some expectation of future publication. Government needs the space in which to rigorously explore and develop the best policy possible.

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.

Article 34 The economy

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

(a) the economic interests of Jersey; or

(b) the financial interests of the States of Jersey.

Article 35 Formulation and development of policies

Information is qualified exempt information if it relates to the formulation or development of any proposed policy by a public authority.