Director of Mental Health and Social Care (FOI)

Original Request

A

Can you please tell me who was on the interview panel for Andy Weir - Director for mental

health & social care?

B

Where & when was this role advertised?

C

How many people were shortlisted?

D

Who was on the shortlisting panel?

E

Please provide a CV of this person's experience during the last 10 years.

F

Can you please confirm if this person is on secondment or a permanent member of staff?

G

If this person is in an interim role, can you please confirm when you will be advertising for a permanent incumbent?

Original Response

A

Group Medical Director – Patrick Armstrong MBE

Chief Nurse – Rose Naylor

B

This role was not advertised.

C

Not applicable.

D

Not applicable.

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.

F

Secondment.

G

A decision is yet to be made in relation to the future of this role and as such, this is information is not held. Therefore, Article 3 of the Freedom of Information (Jersey) Law has been applied. 

Article 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.

Internal Review Request

The Freedom of Information (FOI) request relating to Andy Weir, Director of Mental Health and Social Care was received by Health and Community Services (HCS) on 03 March 2022. A response was provided to the applicant on 28 March 2022.

The response answered a number of questions relating to Andy Weir and Question E requested:

E - Please provide a CV of this person's experience during 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 29 March 2022 querying the use of Article 25 of the Freedom of Information (Jersey) Law 2011. The applicant advised that “I would like to know where the person has worked and in what capacity. This is NOT their personal information” and that “we should be entitled to that information”.

Internal Review Response

On the 31 March 2022, the HCS 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 HCS 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 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

Has the exemption been properly applied?

The exemption cited was Article 25: Personal Information - 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 a 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 another 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. 

In this case, the Director of Mental Health and Social Care is an interim position and has been recruited to the organisation for a finite period. The employee is seconded to this role from his substantive position in the NHS Foundation Trust – Leeds and York Partnership, where he acts as Deputy Chief Operating Officer.

B

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.

Press Release

Apress release was issued at the time of the appointment of the employee and outlined their skills and experience. 

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.

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 resources as described above. 

Legitimate interest

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 original response advised that the process for recruiting to this position was not open, but that an interview for the position took place. HCS sourced the employee via network contacts, and suitability was stress-tested via the interview which was undertaken by the Group Medical Director and the Chief Nurse.  This is suitable when filling an interim position.  

It is acknowledged that the senior level of the employee (the data subject), means that their employment and attributable skills are under scrutiny as they will be making strategic and operational decisions for HCS which will impact and effect key services. However, and in relation to Question E (CV of previous experience), a significant amount of information is available as it is in the public domain. 

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 transparency in relation to the appointment, skills and experience. No ‘new information’ relating to the employee is available that would override their right to privacy.  

HCS is also concerned that the requests of this nature are an attempt to undermine the employee publicly and that further requests may cause the employee distress and impact their wellbeing. 

What’s more, HCS received five associated requests for similar information relating to other employees at the same time, and there is a concern that this is an attempt to unfairly undermine the Executive leadership of the department. 

Therefore, the Article 25 (personal information) exemption was appropriately applied as there was no significant public interest in providing information beyond that which is already publicly accessible. 

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:

• Press Release

The press release issued at the time of the appointment can be found here:

New Appointment for Mental Health Services (gov)

this provides information relating to skills, previous positions and experience

Further, the NHS Foundation Trust – Leeds and York Partnership issued a message from the Chief Financial Officer and Deputy Chief Executive announcing the secondment:

Congratulations to Andy Weir on his Secondment (NHS)

which provides information relating to the role undertaken in his substantive position. 

• Social Media  

Information is accessible via the employee’s LinkedIn profile (LinkedIn is searchable by name)

Outcome 

In applying the Article 25 (personal information) to Question E, HCS appropriately applied an absolute exemption in order to protect the privacy of an individual. The original decision is therefore upheld. 

The internal review also reviewed other exemptions that may have been applied. Had the use of Article 3 (information not held) been considered, 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.