Report prepared for Health and Social Services Minister (FOI)

​​Request

Please provide the report prepared by Deputy Bailhache on behalf of the Minister for Health and Social Services. Please include all correspondence relating to the preparation of the report between the Deputy and the report subjects, including emails between Ministers, Consultants and civil servants.

Response

​Information was submitted by Deputy Bailhache to the Minister for Health and Social Services based on confidential discussions the Deputy had with Government of Jersey employees on behalf of the Minister. 

The purpose of these discussions was for the Deputy to hear any concerns those employees may have, so as to be able to relay the information to the Minister, helping the Minister understand the department for which they are responsible, and to inform the Minister’s thinking on how to improve health care services in Jersey. 

By nature, these were important discussions, and conducted in circumstances which imported an obligation of confidentiality. Disclosure of the information provided and generated from those discussions would be to the determinant of the individual employees (and others who may in future wish to raise concerns). 

As such, this information is treated as absolute exempt under Article 26 of the Freedom of Information (Jersey) Law 2011, “Information supplied in confidence”.

Article 25 of the Freedom of Information (Jersey) Law 2011, “Personal information”, is also applied, considering the rights and freedoms of the confiders of this information and the ability to identify those individuals. This is the case notwithstanding some level of anonymisation in the information, given the nature of the employees, who are more likely to be identifiable due to their roles, and the potential harms that may arise to those employees should they be identifiable.  

Article 35 of the Freedom of Information (Jersey) Law 2011, “Formulation and Development of Policies” is also applied, considering the chilling effect that may arise from disclosure. By its nature, the exercise was intended to source information for the Minister to determine the most appropriate policies to advance and improve health care in Jersey, and disclosure of information so collated has the potential to undermine future exercises, whether that is by undermining the confidence of the confider, or the intermediary (the Deputy in this case) generating information for the Minister from the information the confider provided to them. 

The provision of health care is of critical public interest and importance. Ministers should have a safe space to receive and consider such information in order to develop policies, including in relation to organisational delivery, without the harm of this chilling effect.  

The above applies to all information held related to this matter, on the basis that any information not covered by the above exemptions is minimal. 

No information is held by the Health and Community Services Department.

No consultants were used as part of the exercise. 

Articles applied

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 26 - Information supplied in confidence 

Information is absolutely exempt information if – 

(a) it was obtained by the scheduled public authority from another person (including another public authority); and

(b) the disclosure of the information to the public by the scheduled public authority holding it would constitute a breach of confidence actionable by that or any other person.

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.

Public Interest Test

Public interest considerations favouring disclosure:

• disclosure of the information would support transparency and promote accountability to the general public, providing confirmation that the necessary discussions have taken place
• disclosure to the public fulfils an educative role about the early stages in procedural development and illustrates how the department engages with parties for this purpose.
  

These are strong reasons to support public disclosures around the development of decision-making of government, especially given the pervasive impact that provision of health services has on the lives of Islanders.

Public interest considerations favouring withholding the information.

Employees must be at liberty to express their views frankly and candidly, without the fear of their views being reported in public, otherwise they might express their views less vigorously or more circumspectly, or even feel restrained from voicing them at all, for fear that they will be represented in the media, now or in the near-future, in a way that is damaging to either themselves, the government, or the Island. 

The risk, if publication takes place, is that discussion between employees, States Members, and Ministers becomes stilted and constrained, known as the “chilling effect”, by the knowledge that such discussions could be made public, and decision-making would not have the benefit of the full range of freely expressed opinions to inform it.

Attempts to mitigate the above through sufficient anonymisation would fatally undermine the value of the information, such that it becomes anodyne and uninformative. 

Article 35 is a qualified exemption, which means that a public interest test is required to be undertaken by the SPA. On balance, and considering the above, the view of the SPA is that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

This response delivers a reasonable balance, under the Law, between the need for transparency and accountability, and good decision-making by public authorities. Considering these various factors, the SPA has decided to maintain this exemption.​