Ministers Brexit-related email correspondence (22 June to 25 June 2016) (FOI)

Request

E-mails sent or received by the gov.je accounts of Senator Philip Ozouf, Senator Ian Gorst, Senator Sir Philip Bailhache, Deputy Kristina Moore, Senator Alan Maclean, Deputy Steve Luce and Senator Lyndon Farnham that contain the words ‘Brexit’ between the period of Wednesday 22 June and Saturday 25 June 2016.

Only e-mails relevant to the subject matter of Brexit are being requested not e-mails which just mention the word but not of Brexit content.

Response

All emails and attachments which are relevant to the subject matter of Brexit are attached. They have been examined and where appropriate exemptions have been applied the documents have been redacted or withheld in their entirety.

Download Brexit emails final version Redacted 4.4.17 (1) 20170525 (size 307kb)

Download Brexit emails final version redacted 4.4.17 (2) 20170525 (size 64.3kb)

Download Brexit_Redacted Page 3 20170525 (size 12.3)

Download 2016 06 24 Brexit Leave Statement 20170525 (size 165kb)

Download Brexit communications i 20170525 (size 37.4kb)

Download CI APPG Briefing - MER - 27.06.16_Redacted 20170525 (size 182kb)

Download 2016 05 24 BREXIT to IOD 20170525 (size 77.7kb)

Download PM leave letter DRAFT - v7 (002) 20170525 (size 30.8kb)

Download BREXIT - 24 June COMs 20170525 (size 371kb)

Download Message 64_Redacted 20170525 (size 18.2kb)

Links have been provided below for documents already published.

Philip Ozouf Blog News on the Philip Ozouf website

Brexit Information Report

Medium Term Financial Plans (2017 to 2019)

Exemptions applied

The exemptions and articles of the Freedom of Information (Jersey) Law 2011 which apply to this response are detailed below.

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 it is held by another person on behalf of the authority.

The scheduled public authority (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 that 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, which sets out the meaning of “information held by a public 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.

In a large proportion of the emails, any name or email address which appears in respect of a staff member who holds a position below chief officer, director or someone who is publically known has been redacted. Each redaction of a name has been assessed and consideration given to the person’s role, perception of their personal detail being provided in a public domain, how that would affect them personally and the justification of providing that detail as opposed to withholding it under Article 25. If it is considered they have an expectation that their personal detail would not be released and that any release may cause them unnecessary distress and anxiety, their personal details have been redacted. It is considered that to release this information would breach the first data protection principle as it would not be fair to disclose this type of information into the public domain. Furthermore, it is considered, in the absence of consent that on balance disclosure is not supported by paragraph 6 of Schedule 2, thus none of the legitimising conditions for processing having been met. The data subjects would not reasonably expect their personal data to be shared in this manner.

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.

The correspondence in the redacted disclosure is from a third party, that person would not have anticipated that anything they said in the email would become public knowledge. It is not considered that the public interest overrides the SPA’s obligation for breach of confidence.

Article 33 Commercial interests

Information is qualified exempt information if –

(a) it constitutes a trade secret; or

(b) its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the scheduled public authority holding the information).

Brexit is an ongoing process and there will be much discussion with various areas of business in Jersey. It is not considered that the commercial interests of different sections should be made public. The SPA needs to consider if the disclosure of the commercial information would or would likely to, prejudice the commercial interests of that party. The SPA does not believe that it is in the public interest to release this information as it is about third parties and not the States themselves. There is much negotiation to take place and it is critical for the Island and its businesses to keep them confidential at such an early stage.

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.

The SPA considers that should this detail be released it will 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. Brexit is an ongoing process, there is a need for the government to negotiate and work with the UK and European and world partners without early release of discussions with the various industries.

There is evidence that Brexit has the ability to affect financial markets. If this information was to be disclosed it is likely that it would have an impact on Jersey’s economy and its ability to secure trade deals in the future. 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

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

In the period leading up to the UK’s Brexit referendum vote, Ministers and senior members of staff began to collate and put together documents assessing what the likelihood of a remain vote would be to Jersey or more importantly a vote to leave. Since the outcome of the vote Ministers and senior members of staff continue to assess the impact of the vote on Jersey. The document attached to emails titled UK-EU Referendum – public lines is a live document which is continually evolving. To release the document at this time could have an impact on Jersey and its negotiations.

The SPA is therefore withholding the release of the document as it relates 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 SPA 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 document 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.

The document Brexit report is published (see attached link) however the attachment itself is exempt as policy under formulation and development. 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.

Article 41 International relations

(1) Information is qualified exempt information if its disclosure would, or would be likely to, prejudice relations between Jersey and – (a) the United Kingdom;

(b) a State other than Jersey; (c) an international organisation; or (d) an international court.

Article 41 applies to information if it is considered its disclosure would, or would be likely to, prejudice relations between Jersey and the United Kingdom or a State other than Jersey. The SPA considers the disclosure of the redacted information would be likely to prejudice such relations.

Article 41 is a qualified exemption, which means that a public interest test is also required to be undertaken by the scheduled public authority. It is therefore necessary for the SPA to examine the circumstances of the case. Following assessment the SPA has to decide whether, on balance, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. This information relates to a state other than Jersey and it is considered that to disclose this information could prejudice relations with Jersey. During the period of Brexit the Government of Jersey will be working hard to forge new relationships and strenghten old ones. It is critical at this time that they can feel free to discuss matters and be confident that their discussions will not be released out for the public at large. Jersey and its government will have difficulty building relationships if their interests are not protected from disclosure. For this reason, on balance, it is considered it would not be in the public interest to disclose this information.

One report has been withheld in its entirety under Article 41.