Correspondence relating to the Government of Jersey CEO (FOI)

​Original Request

Please supply all emails between civil servants relating to Andrew McLaughlin and his job at the Bank of Gibraltar, including the emails where this arrangement was discussed and approved.

Original Response

The Chief Executive Officer sought approval from the States Employment Board reference his commitments with the Bank of Gibraltar. This information is publicly available in response to a previous Freedom of Information Request which can be accessed via the link below. Article 23 of the Freedom of Information (Jersey) Law 2011 has been applied.

Employment of Government of Jersey CEO (FOI)​

Information is exempt from publication under Articles 25 and 39 of the Freedom of Information (Jersey) Law 2011.

Articles applied

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.

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 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.

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.

Public Interest Test

Article 39 is a qualified exemption, which means that a public interest test is required to be undertaken by the Scheduled Public Authority (SPA). It is therefore necessary for the SPA to examine the circumstances of the case. Following assessment, the SPA must 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, and good decision making by public authorities this information relates to negotiations between the Government of Jersey and an employee.

Whilst this exemption is written in the present tense (i.e., negotiations that are being held with a prospective employee), at the time the information was generated the correspondence was being held with a prospective employee.

On balance, it was concluded that the public interest does not outweigh the potential prejudice of release, as it could affect future negotiations with prospective employees.​

Internal Review Request

That was my FOI that you referenced. Firstly, it doesn't answer the question: I asked how many days *per month* he is in Gibraltar and this only gives me the information for October. 

Secondly, I'd still like the emails - which are not available elsewhere, so article 23 does not apply. Articles 25 and 39 do not apply as Mr McLaughin is a public figure.

Internal Review Response

This internal review has been conducted by officials of appropriate seniority who have not been involved in the original decision.

They have been asked to review all relevant documentation as provided, with the understanding that additional information may be requested during the review process, and confirm: 

i) Was the right information searched for and reviewed?

ii) Was the information supplied appropriately?

iii) Was information appropriately withheld in accordance with the articles applied and, where appropriate, were the public interest test/ prejudice test properly applied?

The Internal Review concluded that the reference to the previous FOI was not pertinent to a response to this FOI - the previous FOI did not concern emails. As such, the exemptions that were applied were not necessarily all relevant.

The Internal Review requested a search was undertaken for emails between civil servants on the subject of the CEO and the Bank of Gibraltar (namely, the Chief People Officer and the, as was then, interim Chief Executive Officer). The emails related to the development of the CEO’s contract and related communications. The Internal Review made the following observations with regard to the exemptions which were originally applied and whether or not they should be applied to this updated response:

Absolute exemption: Article 23 - Information accessible to applicant by other means

The original response applied Article 23, drawing attention to a previous FoI response. 

The original response did not include any emails and so was not directly relevant to the request. The Internal Review agreed that this exemption should not have been applied originally.

With regard to this updated response, the Internal Review determined that the exemption should not be applied.

Absolute exemption: Article 25 - Personal information

Whether information is personal information under the Law depends in part on the public interest. For example, the salary range of a Chief Officer, given their seniority and the according public interest, is not personal data protected from release under the Law under Article 25. In the case of the Chief Executive Officer, it is more likely that the public interest means that information is not protected under Article 25. That does not mean that all the otherwise personal data of a senior employee is not personal data. Instead, whether it is personal data depends on the nature of the information as well as their seniority.

The internal review agreed that this exemption should not have been applied originally for the same reasons outlined previously, namely that a search of emails was not conducted. 

With regard to this updated response, the Internal Review agreed that this exemption should nevertheless be applied to a substantial proportion of the emails as they contained legitimate personal information.

Qualified exemption: Article 33 – Commercial Interests

With regard to this updated response, the Internal Review determined that aspects of the emails held would likely prejudice the commercial interests of third parties.

Qualified exemption: Article 35 - Formulation and development of policies

The Internal Review determined that aspects of the emails which related to the development of the CEO’s contract and related communications were policy under development, relating to the development of a position on a question of employment for the Chief Executive Officer, and therefore operational policy.

Qualified exemption: Article 39 – Employment

The internal review agreed that this exemption should not have been applied originally for the same reasons outlined previously.

With regard to this updated response, the Internal Review determined that the emails contained employment information given they contained information relating to, or the development of, employment and, as such their disclosure would, or would be likely to, prejudice pay or conditions negotiations now or in the future.

Public Interest Test

Articles 33 to 39 are qualified exemptions, which means that a public interest test is required to be undertaken by the Scheduled Public Authority (SPA). It is therefore necessary for the SPA to examine the circumstances of the case. Following assessment, the SPA must decide whether, on balance, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

On the one hand, there is a need for transparency and accountability, ensuring that the States Employment Board and their representatives act reasonably, and that public scrutiny can support this, especially in relation to a Chief Executive Officer and other senior appointments. 

This is accentuated in the case of an interim Chief Executive Officer, who has much of the influence of an incumbent, even where not expressed. The public in any case, in relation to the most senior government official, whose role is wide ranging and highly impactful, and whose pay is at the highest end of civil service grades, do have a reasonable expectation, and right under the Law, to information that provides insight and supports accountability. 

On the other hand, the requested information relates to negotiations between representatives of the States Employment Board and an employee, and while exemptions are written in the present tense (i.e., negotiations that are being held with a prospective employee), at the time the information was generated the correspondence related to a prospective employee, and disclosure has the potential to undermine future negotiations with Chief Executive Officers. It is crucial that the States Employment Board and their representatives can effectively exchange views and negotiate the best outcomes, without the chilling effect of likely future disclosure as to the conduct and content of those negotiations. 

All the above said, if the search of emails conducted identified information relating to a final approved position in relation to the consequential impacts of any other role on the levels of hours, or pay, or any other relevant matter concerning employment by the States Employment Board, the balance under the Law may fall in favour of disclosing some of this information. The search conducted did not identify any such information. 

Considering all the above, it was concluded that the public interest does not outweigh the potential prejudice of release, notably, as it could adversely affect future negotiations with prospective employees, in particular, future Chief Executive Officers, where it is in the interests of Jersey to have the best ability to secure the best candidate, including appropriate discussions. There are also other appropriate mechanisms to support accountability, notably in the States Assembly and via Panels and Committees. 

As such, all the emails identified in the search conducted are withheld under Articles 25, 33, 35 and 39. 

Finally, the requestor in seeking this internal review confirms that they believe the previous request was not properly answered. The requestor considers they were seeking information on “how many days per month” the Chief Executive Officer is (read as ‘is permitted’) to be in Gibraltar (read as ‘for the purposes of a non-Government of Jersey role’). A review of the contract of employment previously disclosed has therefore taken place, and the contact is clear that no other employment is permitted, save with the prior written approval of the employer. This permission was not in emails identified and searched.