Financial Investigation Manual produced by ECCU (FOI)

​Original Request

This request relates to the Financial Investigation Manual produced by ECCU (i.e. the Economic Crimes and Confiscation Unit) (the "Manual'). The Government of Jersey has a copy of the Manual, since it is referred to in the Update on the National Risk Assessment of Money Laundering.

Please:

A

Confirm the number of pages in the Manual.

B

Provide a copy of the contents page(s) of the Manual. If there is no contents page, please confirm this and provide the title of each chapter, section or similar in the Manual.

If it is necessary (and in accordance with the law) to redact any information please redact the minimum necessary and disclose the rest of the material, explaining in plain English the legal grounds justifying each redaction.

Original Response

A

The information requested is exempt under Article 31 of the Freedom of Information Jersey (Law) 2011.

B. 

This information is exempt under Articles 27(1) and 31 of the Freedom of Information (Jersey) Law 2011. 

The previous response to a request for this document as a whole is added below for reference. This is a request for details of the number of pages and the list of contents, these specific parts of the document form the whole document and are therefore exempt under the same principles. 

Copy of Financial Investigation Manual by ECCU (FOI)​

Articles applied

Article 27 - National security 

(1) Information which does not fall within Article 26A(1) is absolutely exempt information if exemption from the obligation to disclose it under this Law is required to safeguard national security. 

Article 31 - Advice by the Bailiff, Deputy Bailiff or a Law Officer

Information is qualified exempt information if it is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General.

Public Interest Test 

With regard to the public interest arguments, HM Treasury v IC [2009] EWHC 1811 Blake J recognised that when engaged, the Convention will carry significant weight in the public interest test. The Convention has been considered by the Office of the Information Commissioner and was held to be part of Jersey law.

Whilst it is recognised that the strong public interest in protecting Law Officers’ advice may still be overridden in some cases, if there are particularly strong factors in favour of disclosure, conversely, disclosing the advice or whether advice was or will be sought could inhibit the Law Officers from (1) giving frank advice (2) inhibit government bodies in taking advice for fear of its publication; and (3) inhibit the full disclosure to the Law Officers of all material relevant to the advice being sought and therefore real weight ought to be afforded to this aspect of the Law Officers’ Convention.

Disclosing to the public either the legal advice or the fact of whether specific advice was sought or in this case, the length (number of pages) of any such advice does not outweigh the three principles set out above which require the long-standing Law Officer Convention to be maintained. Therefore, the balance is in favour of maintaining the exemption and it is not considered the public interest in disclosure outweighs the preservation of the Convention on this occasion.

Internal Review Request

Introduction

The Request relates to the Financial Investigation Manual produced by ECCU (i.e. the Economic Crimes and Confiscation Unit) (the "Manual'). The Government of Jersey has a copy of the Manual, since it is referred to in the Update on the National Risk Assessment of Money Laundering.

The Request sought:

(a) confirmation of the number of pages in the Manual; and

(b) a copy of the contents page(s) of the Manual or alternatively, if there is no contents page, the title of each chapter, section or similar in the Manual.

The SPA accepts that it has the information sought by the Request.

The SPA, however, has:

(a) refused to confirm the number of pages in the Manual, on the basis that this information is exempt from disclosure under Article 31 (Advice by the Bailiff, Deputy Bailiff or a Law Officer) of the FOI Law; and

(b) refused to provide a copy of the contents page(s) of the Manual, on the basis that this information is exempt under: (i) Article 27 (National Security) of the FOI Law; and, also (ii) Article 31.

The central issue for the Internal Review Panel to determine is whether the SPA was right to withhold the requested information on the basis of the specified exemptions. For the reasons expanded on below, it is submitted that the requested information should not have been withheld on the basis of either Article 27 or Article 31.

Article 27

In order for information to be exempt on the basis of Article 27, it is not sufficient for the information simply to relate to national security. Nor is it sufficient for it to be useful or desirable to withhold the information. In order for information to be properly withheld on the basis of Article 27, it must be determined that withholding that information is “required” to safeguard national security.

“Required” has been interpreted as meaning “reasonably necessary” and there must be “a real possibility of an adverse effect” (emphasis added).

Accordingly, Article 27 can only be relied on to withhold the requested information, if it can be reasonably determined that withholding the requested information is reasonably necessary to prevent a real possibility of an adverse effect on the national security of Jersey.

It appears that the SPA may have misunderstood the request, since the Response states: "This is a request for details of the number of pages and the list of contents, these specific parts of the document form the whole document and are therefore exempt under the same principles".

The contents page clearly does not "form the whole document". The contents page is the page in a book or similar that shows the table of contents. A table of contents, usually headed simply Contents and abbreviated informally as TOC, is a list, usually found on a page before the start of a written work, of its chapter or section titles or brief descriptions with their commencing page number. 

Accordingly, the Request was not seeking the detailed information contained in the Manual; rather it was seeking the contents page which would provide a broad overview of the contents of the Manual, without revealing the detailed information contained therein.

With respect to the contents page(s) of Manual, the suggestion that there is a real possibility that disclosing these page(s) of the Manual will have an adverse effect on the national security of Jersey is self-evidently absurd. The content(s) pages (or alternatively, the title of each chapter, section, or similar) will not contain any detailed operational information or references (for example) to confidential databases or similar. 

In determining whether Article 27 has been properly applied to the information withheld, the correct approach is to consider the constituent pieces of information contained within the contents page(s) of the Manual, rather than to consider the Manual as one single piece of information. As the Tribunal explained in the case of Channel 4 v the Information Commissioner EA/2010/0134, (22 February 2011), “…there is a clear distinction between a document and the information in it … a document may well contain many pieces of information some of which must be disclosed under the Act and others which need not be disclosed”. 

Whilst that case was concerned with a different exemption, under the UK’s Freedom of Information Act, it submitted that a similar approach should be taken in Jersey. Accordingly, to the extent that it is determined that the title of a specific chapter or section is so sensitive that there is a real possibility of an adverse effect on the national security of Jersey if that title is disclosed, and therefore it can be properly withheld on the basis of Article 27, then that information could be redacted, with the rest of the contents page disclosed.

Article 31

The essential point in relation to Article 31 is that it does not apply to the requested information, as the requested information does not constitute advice of the Attorney General or the Solicitor General (or the Bailiff or Deputy Bailiff).

Article 31 is strictly limited to advice that “is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General”; it is not apply to advice from other government lawyers.

It is clear from the response to a separate FOI request (referred to in the Response) that the Manual has not been produced by the Attorney General or the Solicitor General; rather, the Manual “has been produced by legal advisers within ECCU”. Neither the Attorney General nor the Solicitor General are members of ECCU. Indeed, ECCU does not solely consist of legal advisers; ECCU also includes a number of non-legal personnel, including civilian investigators and financial investigators on secondment from the States of Jersey Police. 

Consistent with submission that the Manual does not constitute advice provided by the Attorney General or the Solicitor General, in contrast to guidance that has been issued by the Attorney General, such as the “Attorney General’s Guidance on Parallel Financial Investigations”, the Manual is not described as “Attorney General’s Guidance” or similar.

Indeed, the Government of Journey has itself drawn a clear distinction between the Attorney General’s own manual of guidance in relation to Money Laundering investigations and the Manual which has been produced by ECCU (not the Attorney General); see the GoJ’s Update on the National Risk Assessment of Money Laundering (the NRA 2023 Update), page 37, where it is noted at 5.4.7 that: “Additionally, manuals of Guidance in relation to ML investigations have been published to the LOD by the AG, and both SoJP and ECCU have produced their own Financial Investigation Manual” (emphasis added). 

Accordingly, the SPA was wrong to conclude that information could be exempted on the basis of Article 31, as the information does not constitute advice provided by the Attorney General or the Solicitor General (or the Bailiff or Deputy Bailiff).

It is also noted that it has previously been disclosed that the Guidance to Investigators and Prosecutors on Money Laundering and Financial Crime "exceeded 150 pages in length". It is unexplained why, in the case of that Guidance, the length of the document could be disclosed, but in the case of the Manual it has been deemed in the public interest to withhold information relating to its length.

Whilst length is not entirely synonymous with quality, the length of the document will provide the public with some indication of the seriousness of the Manual. If the length of the Manual is only a handful of pages, for example, then that may be a matter of public concern as it would suggest that, whilst the Government of Jersey has publicised that the Manual had been prepared, it is in fact a only a short document (in contrast to similar manuals prepared by other countries).

Conclusion

For the reasons set out above, it is submitted that the requested information should not have been withheld on the basis of either Article 27 or Article 31. Alternatively, only part (and not the whole) of the information should have been withheld. Accordingly, the Internal Review Panel is requested to disclose the requested information in whole or, alternatively (if the Internal Review Panel determines that the exemptions properly apply to some of the requested information) in part.

Internal Review Response

An internal review was conducted by two senior members of staff independent to the original decision process. 

After extensive discussion, the Panel concluded:

• Articles 27 and 31 should apply to the contents, contents page and number of pages in the Bundle (noting that privilege was not waived).
• given the nature of the document and supporting evidence gathered to compile case information to support prosecution, there remained concerns around National Security and Money Laundering activities in revealing the subject headings of the document.

The Panel considered the public interest test in the original response together with the Applicant comments and concluded they similarly considered the balance of public interest was in favour of maintaining the exemption and not in favour of disclosure on this occasion for the reasons previously referenced.  

It was noted that the public has a legitimate interest in understanding (at least broadly) what the Government is doing in relation to Money Laundering and combatting of financial crime. 

However, the level of insight into matters which ECCU investigators might have regard to and/or the extent to which they operate with others in relation to Money Laundering and combatting of financial crime has the potential to be prejudicial to law enforcement and on balance the disclosure of same was not in the public interest. 

The Government also having a public duty to deny criminals who may seek to abuse the systems and to ensure law enforcement – the prevention, detection, investigation, prosecution of crime and criminal offenders, is as effective as possible.​