Government of Jersey

Documentation for complaint against SOJP (FOI)

Produced by the Freedom of Information office
Authored by Government of Jersey and published on 07 August 2020.
Prepared internally, no external costs.

Request

On 24 October 2019 and again on 2 December 2019, I requested information from Connetable Len Norman relating to my Disciplinary Complaint, submitted on 7 February 2019, against [name redacted] of the States of Jersey Police (SOJP).

Thus far, the only communication I have received from Len Norman is a letter (20 December 2019) in which, in essence, he seeks only to terminate your involvement in the handling of the Complaint.

That letter in no way or form responds to my outstanding requests for information. For that reason, I reaffirm that I am awaiting his full and proper response to the following requests (adapted from earlier correspondence cited above):

Bearing in mind that I informed you of a potentially prejudicial conflict of interests affecting the Chairman of the Jersey Police Complaints Authority, Mr. Howard Cooper, I request the names of the individuals appointed to the Investigating Panel. It is not sufficient, in these circumstances, to be informed that the Panel is required by law to comprise three persons designated by virtue of their functions within Jersey society. Likewise, you have not responded to my request for the identity (or even the official functions or departmental affiliation) of the person(s) who advised the Panel about the conflict of interests affecting Mr. Cooper; you merely refer to “the civil service”.

In response to my earlier request for a copy of the communication from the Chairman of the Investigating Panel dated 11 October 2019 setting out the Panel’s conclusions and recommendations, you responded (your letter of 26 November 2019) with the statement: “the Regulations do not provide for me to share a copy of the communication from the Chair of the Panel setting out its conclusions and recommendations”. That might be true. But likewise the Regulations do not expressly prohibit the sharing of that communication with me, the Complainant – and least of all when you, in your capacity as a Scheduled Public Authority, have been expressly asked to provide that information. If you seek to deny me access to that communication, it would be appropriate to do so in the manner required by the FOI Law, that is, by citing the applicable exceptions.

I also reiterate my request for a full and complete copy of your letter to the SOJP in which you set out the “lessons in relation to the process and procedure of recording and processing complaints” drawn from the Panel’s examination of my Complaint.

The documents referred to in points B and C were produced by a public body set up according to the Law of Jersey and accountable to the tax-paying public and other users of the services provided by the Government of Jersey for its actions and opinions. You, in your capacity as Minister responsible for convening the Panel and also for overseeing the functioning of the SOJP, have controlling access to that public information and have been asked to provide it to me in my capacity as Complainant in this case.

Given that the documents already exist and are readily accessible to you, I anticipate that I shall receive them within twenty working days from the date of this e-mail, without recourse to the legal options that remain open to me.

For the avoidance of doubt: this e-mail is a Freedom of Information request as defined in the Freedom of Information (Jersey) Law 2011, and requires a response in accordance with that Law and the relevant guidelines and good practices.

Response

This request is refused as the information is considered absolutely exempt under Article 25 (Personal Information) of the Freedom of Information (Jersey) Law 2011.

The information requested relates to a complaint and therefore needs to be considered as personal information under the Data Protection (Jersey) Law 2018. The information requested is held for a specific purpose and it is considered that release of the information would breach the principles of Article 8 (1) (a) of the Data Protection (Jersey) Law 2018.

Article 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.

(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.

Internal Review request (1)

I have received today the Response to my Freedom of Information (FOI) Request dated 29 February 2020 in which I asked for information and documents relating to a Disciplinary Complaint against [name redacted] of the States of Jersey Police.

I have given the Response due consideration and find it unsatisfactory inasmuch as it merely states that the information I requested is, quote; “considered absolutely exempt under Article 25 (Personal Information) of the Freedom of Information (Jersey) Law 2011.”

I now request an Internal Review into the handling of my Request, in accordance with the “Freedom of Information Internal Review Procedure”.

The reasons for requesting this Review are set out below:

1
My Request was in three sections. In summary:
In Section A I asked for the names of certain persons fulfilling public functions defined by Jersey statute law or regulations, specifically the members of an ‘investigating panel’ set up under the “States Of Jersey Police Force (Chief Officer And Deputy Chief Officer) (Jersey) Regulations 2017”, and one other person known to have been involved in advising the panel, or the Minister for Justice and Home Affairs, about a conflict of interests affecting a presumed panel member.
In Section B I asked for a copy of a ‘communication’ from the Chairman of the investigating panel convened by the Minister for Justice and Home Affairs, setting out that panel’s conclusions and recommendations in relation to a Disciplinary Complaint lodged against [name redacted] in August 2019. (Note: The nature of that ‘communication’ has never been disclosed to me – it might be a report, e-mail, memorandum, phone call recording / transcript, and so on)
In Section C, I asked for a copy of a letter from the Minister to the SOJP.
2
After citing Article 25 as the sole motive for withholding all the requested information, the Responder has justified that stance on the grounds that, quote: “The information requested relates to a complaint and therefore needs to be considered as personal information under the Data Protection (Jersey) Law 2018. The information requested is held for a specific purpose and it is considered that release of the information would breach the principles of Article 8(1)(a) of the Data Protection (Jersey) Law 2018.”
The Respondent has not sought to explain why the mere fact that the requested information "relates to a complaint" necessarily means that it needs to be considered as "personal information", and the cited legal Articles say nothing that supports that thesis.
Although it is not immediately apparent owing to the confusing way the statement is worded, it in fact contains two sets of criteria: whether the requested data is ‘personal data’, defined in Article 2 of the Law; and / or, whether disclosure would infringe Article 8(1)(a).
We therefore need to look at the requested information to see if it is ‘personal data’, Article 2(1), and / or whether its disclosure might infringe the principle of Article 8(1)(a):
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. [...]
8. Data protection principles
(1) A controller must ensure that the processing of personal data in relation to which the controller is the controller complies with the data protection principles, namely that data are –
(a) processed lawfully, fairly and in a transparent manner in relation to the data (“lawfulness, fairness and transparency”)
3
The Response applies a blanket refusal to respond to all three Sections of the Request, citing Article 25 – but without specifying whether the Article 2(1) definitions, or the Article 8(1)(a) principle, is applicable to each Section of the Request.
It is incumbent upon the Responder to act in a ‘pro-disclosure’ manner. That is, (s)he is expected to supply all information relevant to the Request which is not specifically ‘absolutely exempt’, and the Law and relevant ‘best practice’ materials indicate ways in which potentially-exempt information can and should be anonymized to allow its disclosure. Consequently, rather than applying a blanket Article 25 refusal to all the requested information, the Responder should, in respect of each item of information that has been requested:
a) Disclose all relevant information that is not covered by Article 25 (or indicate where the information is already available – not applicable in this case).
b) Anonymize and disclose information that may legitimately be covered by Article 25.
c) Only refuse to disclose information that is covered by Article 25 and cannot be adequately anonymized to protect legitimate private information.
4
With regard to Section A, there is no need to disclose any personal information whatsoever about the Complainer (myself) or the Complainee ([name redacted]). The Responder has in any case protected the Complainee’s identity by redacting his name, and that can easily be extended to other documents that would be released in a full and proper response to the Request. Likewise, my own name and personal information can easily be redacted from any of the requested information, and the same applies to any other ‘third parties’ who might be named or otherwise identifiable in the requested documents.
It is not at all clear, therefore, whose ‘personal information’ is being protected by the application of the absolute exception of Article 25. Three of the persons whose names were requested are (or were, in mid-2019) serving as members of a formal panel set up under Jersey Law and convened by the Minster for Justice and Home Affairs. The fourth person has been identified, by the Minister himself, only as ‘a civil servant’. It is reasonable, in the context of a Freedom of Information request, to consider all those four persons as ‘public servants’, inasmuch as they were acting in the service of the public to carry out a procedure established by Law on behalf of the entire population.
A discussion paper published by the Office of the Australian Information Commissioner in July 2019 which can be viewed at the following link:
Disclosure of public servants' names and contact details - Discussion paper
states that:
“It has long been considered that in general, disclosure of public servants’ names in response to an FOI request would not be unreasonable. Such disclosure forms part of the system of accountability and transparency of government actions and decision making.”
That same source then quotes from “Freedom of Information Memorandum No. 94”: It was not [the Australian] Parliament's intention to provide anonymity for public officials each time one of them is mentioned in a file. That would be contrary to the stated aims of the FOI Act and would not assist in promoting openness or accountability. [...] One major example of circumstances which would be relevant [to the need to consult under s 27A] is where the name of an official appears in a document in the normal course of the official's duties. There is no personal privacy interest in that information, and there is no need to consult with officials in such circumstances. [...] Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties. Such information may often also be publicly available, such as on an agency website [...] In seeking to claim the exemption an agency needs to identify the special circumstances which exist rather than start from the assumption that such information is exempt [...]
While I recognise that Australian best practice does not necessarily match that in Jersey, I do firmly believe that the approach adopted by the Respondent in the present case is diametrically opposed to all the principles under-pinning the Australian stance on the disclosure of public servants’ names. Also, I am aware that in my current country of residence, [redacted], there is a legal requirement spontaneously to disclose the full name and function of every public servant whose work impacts on official decisions affecting any person - no FOI request is needed to this end.
If we set these considerations against the grades of ‘censorship’ listed in para 3 above, there is clearly no justification, for example, for refusing to name Mr. Charlie Parker, Chief Executive of the Government of Jersey, as one of the members of the investigating panel, considering that the Chief Executive – whoever the incumbent is at any particular time – is an ex oficio member of all such panels in accordance with Article 2(1) of the cited Regulations. On the contrary, demonstrating publicly that the Law has been complied with is a good way for any public authority to confirm to its paymasters, the public, that it has applied the Law properly. And an administration that does not make such demonstration when so invited may reasonably expect to have its actions and motives questioned.
Indeed, with regard to Article 8(1)(a) of the Data Protection (Jersey) Law 2018, there can surely be no purpose more “lawful, fair and transparent” than demonstrating to the protagonists in a complaints procedure, and to the public at large, that the Laws and Regulations of Jersey have been respected.
5
In respect of Section B of the Request, it will be recalled that the first refusal I received from the Minister for Justice and Home Affairs was on the grounds that, quote: “the Regulations do not provide for me to share a copy of the communication from the Chair of the Panel setting out its conclusions and recommendations”.
Now, after I clarified that my request to the Minister was to be considered as a FOI Request, the motive for refusal has changed to apply the absolute exemption of Article 25.
This change of motive for refusal is worrying, because it suggests that the over-riding concern of the Responder is to conceal information at all costs – and that is diametrically opposed to the principles of openness, transparency and accountability required by the Freedom of Information (Jersey) Law 2011.
It is also a matter of considerable concern that, in the specific case at hand, my Disciplinary Complaint against [redacted]. Consequently, the ‘communication’ from the anonymous investigating panel, which led the Minister to terminate the complaints procedure against [name redacted] even before it was investigated by an officer from another force (as per the cited Regulations) on the basis of a set of conclusions and recommendations that I, the Complainant, have not been allowed to read, in effect gave the SOJP total impunity with regard to their decision not to investigate the alleged crimes. There is a chain of negations of transparency and due process in play, much of it put together by un-identified individuals, and the Response to the present FOI Request is just another link added to that chain.
In view of the principles referred to in para 3 above, I believe that the ‘communication’ in question will be amenable to anonymization (redaction) to ensure it does not breach the Data Protection (Jersey) Law 2018. And if that is not the case, then the Response should state that as the reason for not disclosing the ‘communication’, rather than hiding it behind a spurious application of Article 25.
6
With regard to Section C of the Request, the same arguments in favour of disclosure – with anonymization where necessary to comply with the Data Protection (Jersey) Law 2018 – also apply here. In a letter dated 26th November 2019, the Minister informed me that his letter to the SOJP set out the “lessons in relation to the process and procedure of recording and processing complaints” drawn from the Panel’s examination of my Complaint.
Given that the letter apparently refers only to procedural matters, there is no reason to suppose it contains any information falling foul of Article 25 of the Freedom of Information Law (Jersey) 2011, or Articles 2(1) or 8(1)(a) of the Data Protection (Jersey) Law 2018 – which are the only articles cited by the Responder as motives for the refusal to disclose the document.
When I set the Minister’s description of the letter’s content against certain sections of my Disciplinary Complaint against [name redacted] (the document that triggered the formulation of those 'lessons'), I am led to suppose that some of the lessons related to the inadequate recording of reported crime by the SOJP. Further, that that inadequate reporting will have caused the people of Jersey to be misled about the Island’s crime statistics owing to the 'disappearance' of many reported crimes from the SOJP's auditable records system. In connection with this, it is relevant to note that in an Internal Review Response to a FOI Request (Recorded Crime (FOI)) it was disclosed that over 40,000 'occurrence reports' were recorded by the SOJP from 2008 to 2019 – one of those no doubt being my Criminal Complaint that was not investigated by the SOJP [redacted] –, and it was implicit from that Response that those 'occurrence reports' are never audited, hence do not appear in any published crime statistics.
In view of the high public interest in the provision of reliable and accurate crime statistics for the Island (witness the frequent FOI Requests on the subject), I believe the Responder should concede that an effort needs to be made to render public – in a suitably anonymized form - the failings that were identified by the investigating panel that looked into my Disciplinary Complaint, and the ‘lessons’ that were supposed to be learnt about crime reporting and complaint processing procedures in the SOJP.
7
In relation to both Sections B and C of the present Request it is relevant to observe that it is not uncommon for correspondence (letters, e-mails, memorandums, and so on, between the Island’s authorities to be disclosed (sometimes in redacted form) in response to FOI Requests - even when those documents may cause embarrassment to public officials.
8
On a further matter related to the supposed ‘personal information’ of [name redacted]or other persons, it is stated in the covering e-mail with which the Response was sent to me, that “Your request and the response to your request will not published on the log of responses on the Gov.je website as this request details personal information.”
The assertion at the end of that statement is demonstrably incorrect. [Name redacted] name has been redacted from the first paragraph of my Request, and Mr. Howard Cooper’s name could be redacted too, if that were deemed necessary (it is not – it is public knowledge that he is the Chairman of the Jersey Police Complaints Authority, and the Regulations require him to be an ex oficio member of the investigating panel). No-one else is identifiable from either the Request or the Response. I can only deduce that the sole purpose of the decision not to publish this information on the gov.je website is to avoid revealing the fact that at least one complaint has been made against a top-ranking SOJP officer since the cited Regulations came into force.
9
In relation to para 8 above, it would be appropriate for the Responder, or the Central Freedom of Information Unit, if different, to confirm that the information that has been provided is now in the public domain, even if it has not been published on the gov.je website.
10
In the light of considerations set out in para 4 above about the identification of public servants who deal with individual members of the public, I am concerned to note that the document containing my Request and the initial Response is not attributed to any public servant, nor even a Scheduled Public Authority. It therefore lacks essential information enabling it to be properly cited, for example in a legal or academic paper.

For the reasons outlined above, I request an Internal Review into the handling of my Request of 29th February 2020, in accordance with the “Freedom of Information Internal Review Procedure”.

I note from that procedure that the Internal Review will be carried out by “someone senior to the original decision maker where this is reasonably practicable. They will not have involvement in the original decision.” As a matter of general principle, I believe that the source of FOI responses and all other communications from public officials should be made known to the person making the request. Given that the Response received today is not accredited to any specific source (nor even dated), I ask that the Internal Review Response shall identify all those involved in drafting both the original Response and the Internal Review.

Review response

Prior to commencement of an Internal Review, the original responding team and approver have revisited the decisions made in relation to this request. After further consideration of the public interest test and the application of the exemption, it was decided that they would, in the first instance, release an amended final response to this request. It is noted that this does not affect the ability of the requester to request an Internal Review should they remain unsatisfied with the revised final response.

Revised Final Response

A (i)

I request the names of the individuals appointed to the Investigating Panel.

When assessing whether it is appropriate to release the names of individuals, we are required to consider a number of factors in order to weigh up the rights and freedoms of the individuals concerned against the wider public interest in the release of this data. The factors that need to be considered include:

the type of data concerned
the consequences of disclosure
the seniority of the individual (if a staff member)
the role of the individual
the reasonable expectation of the individual
the public interest versus an individual requester’s interest

The request is to provide the name of the individual panel members.

The investigatory panel comprised three members, as set out in the States of Jersey Police Force (Chief Officer and Deputy Chief Officer) (Jersey) Regulations 2017 (the Regulations);

2 Investigating panel and tribunal
(1) In these Regulations, “investigating panel” means a panel appointed by the Minister comprising –
(a) the Chief Executive Officer;
(b) the Chairman of the Police Complaints Authority or a member of that Authority nominated by the Chairman; and
(c) one other person appointed by the Minister, such person not being a member of the Force or a States’ employee.

Whilst there appears to be limited public interest in the release of this data, the roles of the Government employees concerned would carry a reasonable expectation that this information could be disclosed. Furthermore, it is not considered that the disclosure of this information would harm the rights of the individuals concerned.

The first two roles of the investigatory panel were filled by Mr Mark Rogers (Director General, as alternate for the Chief Executive Officer) and Mr Howard Cooper, Chairman of the Police Complaints Authority.

The third member of the panel was a third party appointed by the Minister for Home Affairs in accordance with the Regulations. This individual is not a Government of Jersey employee and would have an expectation of privacy. Given the limited public interest in identifying this individual, the details of the third member of the panel are withheld under Article 25 (Personal Information) of the Freedom of Information (Jersey) Law 2011.

A (ii)

The identity (or even the official functions or departmental affiliation) of the person(s) who advised the Panel about the conflict of interests affecting Mr. Cooper

Advice was provided by a senior member of the Strategic Policy, Planning and Performance department.

A copy of the communication from the Chairman of the Investigating Panel dated 11th October 2019 setting out the Panel’s conclusions and recommendations.

A full and complete copy of your letter to the SOJP in which you set out the “lessons in relation to the process and procedure of recording and processing complaints” drawn from the Panel’s examination of my Complaint.

Whilst the data being requested is not ‘sensitive personal data’ as defined in the Data Protection (Jersey) Law 2018 there is limited public interest in the release of this data. The release of the data appears to be in the private interests of the individual requester. Complaints procedures, notwithstanding the employment level of the defendant, carry a high risk of prejudice against the defendant (and also potentially against the complainant). Public interest is not in favour of exposure of personal information in relation to complaints that have not proceeded past an investigatory panel.

After due consideration it was determined that there would be no sufficient means of redaction of the documents to remove solely the identity of the subject, as it is public knowledge who was within the relevant roles at the time of the complaint. If such a redaction were to be undertaken, not only would the details of the individual need to be removed but all dates and a number of other references. The limited public interest in release of the document would be removed.

Notwithstanding these difficulties, it is considered that release of extracts from each of the documents would not breach the Data Protection (Jersey) Law 2018 and would satisfy the requirements of legitimate public interest. Document B, having not been seen by the defendant, carries a greater weight of privacy and the extracts from this document have therefore been restricted to the conclusions and recommendations of the panel, as per the terms of the request:

Extracts from item B

The Panel did not find any evidence that the [redacted] has acted in any way that would justify a criminal or disciplinary charge. However, in the absence of a report or record of how [redacted] was advised on the matter, the Panel is of the view that the SOJP [redacted] have not paid sufficient attention to documenting their decision making process and communicating the rationale for the actions taken to the complainant.

Recommendation

The Panel strongly recommends that the SOJP provide [redacted] with a detailed and comprehensive response to [redacted] complaint. This response should clearly set out and explain the criteria by which the specific aspects of the complaint were measured and determined to be a civil matter and, therefore, not one which warranted further police action. The Panel would also recommend that the response should reveal the rationale for the decisions taken and the procedural steps that were followed.

Extracts from item C

The Panel did not question the experience or integrity of the reviewing officers in forming a view and reaching their decision in relation to [redacted] complaint. The Panel did not question the validity of the decisions made by those officers and acknowledged the discretion the States of Jersey Police has to determine which allegations and claims warrant further investigation. The Panel did not find any evidence that the matter had not received formal consideration and appropriate assessment.

Despite these positive findings, the Panel found that there was an absence of auditable records of the decision-making process and procedures which hindered that Panel's ability to assess the level or degree of analysis to which the complaint was scrutinised.

The Panel was clear that it would have expected to have seen an explanation and justification for the conclusion that was reached. The Panel was of the view that the SOJP [redacted] did not pay sufficient attention to documenting the decision-making process and communicating the rationale for the actions taken to the complainant.

These represent important lessons which need to be learnt.

Of particular importance is the need to ensure that auditable records of SOJP decision-making processes and procedures are kept; and that complainants receive a detailed and comprehensive response to their complaint, clearly setting out and explaining the criteria by which the specific aspects of the complaint were measured and determined.

The Panel recommended that SOJP provide [redacted] with a detailed and comprehensive response to [redacted] complaint.

Internal Review request (2)

On 19 June 2020 I received a “Revised Final Response” to my FOI Request dated 29th February 2020, in which I asked for information and documents relating to a Disciplinary Complaint against [Name redacted] of the States of Jersey Police.

I have given the Revised Final Response due consideration and find it unsatisfactory.

I now, and for the second time, request an Internal Review into the handling of my Request, in accordance with the “Freedom of Information Internal Review Procedure”.

Note: There is a presumption in this Request for Internal Review that the Responder is the Minister for Justice and Home Affairs, because the Original Request was submitted to him in the first instance. That is why references are to a single male Responder, even though there may in fact be several Responders of either gender. See also paras 47 - 48.

Preamble

For a proper understanding of the motives for finding the Revised Final Response unsatisfactory, it is necessary to bear in mind that this FOI Request was made after the Minister for Justice and Home Affairs had already refused, twice, to provide the requested information through private correspondence, on the grounds that the Regulations did not require him to supply it.

In an Original FOI Response dated 27 April 2020 the Responder again refused to provide any information at all, but on the grounds that all the information I requested was, quote: “considered absolutely exempt under Article 25 (Personal Information) of the Freedom of Information (Jersey) Law 2011.”

I submitted a (first) Request for Internal Review on the same date, 27 April 2020.

In an e-mail dated 20 May 2020 the Central FOI Unit led me to believe that an Internal Review was indeed being prepared, but that the Reviewer had asked for an extension owing to the Covid-19 pandemic.

The Central FOI Unit wrote again on 19 June 2020, but the document delivered with that e-mail was not the expected Internal Review Response but instead a so-called “Revised Final Response”. This was apparently prepared by the Original Responder, not someone senior to the original decision maker who has not had involvement in the original decision, as per the Internal Review Procedure.

In response to a request for clarification, the Central FOI Unit confirmed (23rd June 2020) that if I found this Revised Final Response was unsatisfactory, I would need to submit a second Request for Internal Review (the present communication).

Inadequacies of the Revised Final Response

My Request was in three sections. In summary:

In Section A I asked for A(i) the names of the persons fulfilling public functions defined by Jersey statute law or regulations, specifically the members of an ‘Investigating Panel’ set up under the “States Of Jersey Police Force (Chief Officer And Deputy Chief Officer) (Jersey) Regulations 2017”; and A(ii) the name of one other person known to have been involved in advising the Panel or the Minister for Justice and Home Affairs about a serious conflict of interests affecting a presumed Panel member.

In Section B I asked for a copy of a ‘communication’ from the Chairman of an Investigating Panel convened by the Minister for Justice and Home Affairs, setting out that Panel’s conclusions and recommendations in relation to a Disciplinary Complaint lodged against [Name redacted] in August 2019. (Note: The nature of that ‘communication’ has never been disclosed to me – it might be a report, letter, e-mail, memorandum, and so on)

In Section C, I asked for a copy of a letter sent from the Minister to someone at the SOJP.

In the Original Response, the Responder cited Article 25 of the FOI Law as the sole motive for withholding all the requested information on the grounds that, quote: “The information requested relates to a complaint and therefore needs to be considered as personal information under the Data Protection (Jersey) Law 2018. The information requested is held for a specific purpose and it is considered that release of the information would breach the principles of Article 8(1)(a) of the Data Protection (Jersey) Law 2018.”

In my first Request for Internal Review I argued, in synthesis, that the Responder had failed to correctly apply the absolute exception of Article 25, because he was required to assess the applicability of that exception separately to each item of information, and not apply it en bloc to the entire Request.

I also pointed out that it is incumbent upon the Responder to act in a ‘pro-disclosure’ manner. That is, he should supply all information relevant to the Request which is not specifically ‘absolutely exempt’, and the Law and relevant ‘best practice’ resources indicate ways in which potentially sensitive personal information can be anonymized to allow its disclosure. Consequently, rather than applying a blanket Article 25 refusal to all the requested information, the Responder should, in respect of each item of information that has been requested:

a) Disclose all relevant information that is not covered by Article 25 (or indicate where the information is already available – not applicable in this case).
b) Anonymize and disclose information that may legitimately be covered by Article 25.
c) Only refuse to disclose information that is covered by Article 25 and cannot be adequately anonymized to protect eventual personal information.

I pointed out that there was no need to disclose any personal information whatsoever about the Complainer (myself) or the Complainee ([Name redacted]). In his Original Response the Responder had in any case sought to protect the Complainee’s identity by redacting his name, and if necessary that could easily be extended to other documents that would be released in a full response to the Request. Likewise, my own name and personal data could easily be redacted from any of the requested information, and the same applies to any other ‘third parties’ who might be named or otherwise identifiable in the requested documents.

It was not at all clear, therefore, whose ‘personal information’ was being protected by the blanket application of the absolute exception of Article 25.

With regard to Section A(i), and by way of response to these arguments, the Responder conceded, in the Revised Final Response, that the names of two of the three Investigating Panel members could in fact be disclosed. This change of stance is welcome – but insufficient.

In the Revised Final Response the Responder has disclosed the names of two Investigating Panel members on the grounds that “there appears to be limited public interest in the release of this data, [and] the roles of the Government employees concerned would carry a reasonable expectation that this information could be disclosed. Furthermore, it is not considered that the disclosure of this information would harm the rights of the individuals concerned.”

The individuals are then named as “Mr Mark Rogers (Director General, as alternate for the Chief Executive Officer) and Mr Howard Cooper, Chairman of the Police Complaints Authority.”

The Responder maintained his earlier refusal to disclose the name of the third Panel member on the grounds that “This individual is not a Government of Jersey employee and would have an expectation of privacy. Given the limited public interest in identifying this individual, the details of the third member of the panel are withheld under Article 25 (Personal Information) of the Freedom of Information (Jersey) Law 2011.”

There is evident arbitrariness in the Responder’s application of the “public interest” test. He concedes that there is indeed a degree of public interest (which he qualifies as “limited”) and that it is sufficient to warrant naming two of the Panel members. But he then claims that that exact same (“limited”) degree of public interest is insufficient to warrant disclosure of the third member’s name.

His observation to the effect that the third anonymous Panel member “is not a Government of Jersey employee” is entirely artificial and arbitrary. The Responder seems not to realise that Mr. Howard Cooper, Chairman of the Jersey Police Complaints Authority (JPCA) – who he has belatedly chosen to identify by name – is not a Government of Jersey employee either.

The assertion that the third Panel member would have “an expectation of privacy” also deserves a robust challenge (paras 11 to 22).

There are numerous circumstances in which an individual who is not a Government of Jersey employee takes an active part in assisting the Island’s Government and Public Administration in the fulfilment of its essential functions in support of the well-being of the entire population. And there is ample precedent for disclosing the names and credentials of those persons. For example, eleven non-Government individuals were named, each with an indication of his / her professional affiliation, in a news item published on the gov.je website on 19th July 2018 (see New appointments to senior leadership team). One of those individuals is even quoted on matters relating to the administrative process they were involved in, and it seems likely that at least some of those people will have accepted a position on the Panels precisely because of the public exposure they, or their business interests, would be afforded. Although the purpose of a panel convened by the Jersey Appointments Commission, on the one hand, and an Investigating Panel convened by the Minister for Justice and Home Affairs in accordance with the Regulations cited in para 1, on the other hand, is rather different, the likely expectations of persons recruited or co-opted for those panels from outside the Government of Jersey have no reason to be significantly different.

There is another precedent in respect of those called for jury service. Such individuals have a role not entirely unlike that of members of an Investigating Panel (both serve in the process of delivering justice through an assessment of the strength of evidence and arguments presented by the parties) and, except in very exceptional circumstances, they have the expectation that their names will be revealed because they sit in an open court-room where they can be freely identified by people sitting in the public gallery and the press.

In a public-service context directly analogous to the work of an Investigating Panel convened under the cited Regulations, it may be noted that in the disciplinary complaints procedure for all ranks in the SOJP except the CO and DCO, the preliminary investigation of a complaint (if not dealt with internally within the SOJP) is conducted by the JPCA. It is relevant to observe that the Chairman and all members of the JPCA are appointed through a vote in the States Assembly, and the corresponding propositions contain not only the name of the proposed individual but also a biography serving to demonstrate the professional / personal background and good standing of that person.

The importance of this public information is demonstrated by the fact that it was only as a result of the publication of his biography on the gov.je website that I was able to detect the serious conflict of interests that affected the Chairman of the JPCA, Mr. Howard Cooper. The publication of the names and credentials of JPCA members is an example of good practice and a pro-active approach to promoting impartiality, fairness and probity in a complaints procedure. And, given that the purpose of the appointment is basically the same, it is a clear precedent for disclosing the name and affiliation of anyone appointed to an Investigating Panel under the Regulations applying to the CO and DCO of the SOJP.

I also contend that a decision as to the right to privacy of an individual who assists the Island Authorities in the accomplishment of a task established by law, should not depend on their presumed expectation (which will vary from one individual to another), but rather on the nature of the function or service they have been called upon, and voluntarily agreed, to fulfil.

In the case at hand, the function or service is participation in an investigation into a disciplinary complaint against a top-ranking police officer. Such an investigation is a serious matter that can have grave and far-reaching consequences not only for the complainee / defendant, but also for the complainer, the government, the public administration and the public at large.

The level of public interest in such matters is usually very high, as is well-illustrated by the public and media interest generated by the suspension and subsequent departure of former CO Graham Power QPM, which took place almost a decade before the present Regulations came into effect. In such cases the expectation of the public is that the criterion of privacy accorded to Panel members will be the same as for those involved in any legally-constituted tribunal, and failure to respond to that public expectation may lead to allegations of deliberate wrong-doing and unsavoury press headlines referring to bias, corruption or ‘kangaroo courts’.

A further consideration is that there is no justification for applying a different privacy expectation criterion to one member of the Panel compared to the others. In principle they all have equal standing in the functioning and deliberations of the Panel. For example, the Regulations do not impose that any particular member shall chair the Panel and the Minister for Justice and Home Affairs is on record (prior to the present FOI Request) as stating that in the case at hand the Panel chose its chairperson freely from amongst its members (although he declined to indicate who had been chosen and continues to withhold that information through his refusal to disclose the Panel’s entire ‘communication’ (item B)).

Contrary to the Responder’s assertion that the third Investigating Panel member would have an “expectation of privacy”, I contend that (s)he would have every reason to suppose that, at the very least, his / her name would be revealed to anyone having a legitimate interest in the Disciplinary Complaint, and indeed to the public at large. Such supposition would be based on an understanding that “justice must be seen to be done” – not only in a court of law but also in any other body established to judge a person or his / her acts on the basis of an examination of the relevant facts and evidence.

In the present case, the as-yet anonymous ‘third member’ may have been the chairperson of the Panel and / or author / signatory of the document identified in Section B of this Request. And for all we, the public, know, that individual may have been a cousin or colleague of one of the persons identified as an offender in my Criminal Complaint – or, indeed, a friend, relative or former colleague of [Name redacted]. Having decided that two Panel members can be named, thereby acknowledging the legitimate public interest in this information, the refusal to name the third member may be seen as arbitrary, discriminatory and worryingly unethical.

Although an Investigating Panel is not a court of law, it is nevertheless a component in a chain of bodies having responsibility for the exercise of criminal justice. The findings of the Panel may lead to a criminal investigation, criminal charges and the appropriate penalties. Demonstrable probity on the part of all participants in the investigative process is essential in such processes, and this can only be assured if the participants are properly identified. When the Responder insists that there is only “limited public interest” in the composition of a body involved in dispensing justice he ignores the fact that justice must be “seen to be done” in all cases – even those in which there may be no public interest at all. It is not good enough to pretend that, “because no-one is looking”, a public authority (and least of all a Minister for Justice) can set up an anonymous Panel to investigate and deliver a report that may, ultimately, lead a high-ranking public servant to prison – or, indeed, as in the present case, absolve him from blame.

Rather than contributing effectively to the task of ‘dispensing justice’, the Responder seeks to ‘dispense with justice’ through the erection of artificial barriers to openness, transparency and accountability.

In respect of Section A(ii), concerning the identity of the civil servant who advised on the conflict of interests affecting Mr. Howard Cooper, the Responder has, in the Revised Final Response, identified the department to which that individual belongs: “a senior member of the Strategic Policy, Planning and Performance department”.

This is a welcome, albeit minimal, development. The Responder is again asked to provide the name of this person, considering that as a “senior member” of the department in question (s)he would likely have the same “reasonable expectation that this information could be disclosed” as the two individuals named in para 6.

In respect of Section B of the Request relating to the ‘communication’ (precise nature unknown – letter, e-mail or other) in which the Investigating Panel set out its conclusions and recommendations, it will be recalled that the first refusal I received from the Minister for Justice and Home Affairs (before I restated my request in the form of a FOI Request) was on the grounds that “the Regulations do not provide for me to share a copy of the communication from the Chair of the Panel setting out its conclusions and recommendations”.

In the Original Response, after I clarified that my request to the Minister was to be considered as a FOI Request, the motive for refusal changed to apply the absolute exemption of Article 25.

In my first Request for Internal Review I noted that this change of motive for refusal was worrying, because it suggested that the over-riding concern of the Responder was to conceal information at all costs – and that was diametrically opposed to the principles of openness, transparency and accountability required by the Freedom of Information (Jersey) Law 2011.

I also explained in the first Request for Internal Review that there was a chain of negations of due process in play, much of it put together by un-identified individuals, and the Original Response to the present FOI Request was just another link added to that chain.

I asserted that the ‘communication’ in question would be amenable to anonymization (redaction) to ensure it did not breach the Data Protection (Jersey) Law 2018. And if that were not the case, then the Response should state that as the reason for not disclosing the ‘communication’, rather than hiding it behind a spurious application of Article 25.

25.

I made similar assertions with regard to Section C of the Request, concerning a letter from the Minister for Justice and Home Affairs to an as-yet un-identified individual in the SOJP. In a letter dated 26th November 2019 (prior to submission of the present FOI Request), the Minister had informed me that this letter set out the “lessons in relation to the process and procedure of recording and processing [criminal] complaints” drawn from the Panel’s examination of my Disciplinary Complaint.

In my first Request for Internal Review I argued that, since the letter apparently referred only to procedural matters, there was no reason to suppose it contained any information falling foul of Article 25 of the Freedom of Information Law (Jersey) 2011, or Articles 2(1) or 8(1)(a) of the Data Protection (Jersey) Law 2018 – which had been the only articles cited by the Responder, in the Original Response, as motives for the refusal to disclose the document.

I also noted, in relation to both Sections B and C of the Request, that it is not uncommon for correspondence (letters, e-mails, memorandums, and so on) between the Island’s authorities to be disclosed (sometimes in redacted form) in response to FOI Requests.

In the Revised Final Response the Responder has:

a) Conceded that, quote: “the data being requested is not ‘sensitive personal data’ as defined in the Data Protection (Jersey) Law 2018 [and] there is limited public interest in the release of this data.”

This is a significant U-turn compared to the Original Response.

b) Disclosed some extracts from each document.

These are welcome developments, but they remain absolutely insufficient.

In my Request, I asked (Section B) for, quote: “a copy of the communication from the Chairman of the Investigating Panel dated 11th October 2019 setting out the Panel’s conclusions and recommendations”.

In the Revised Final Response, the Responder has mis-represented the Request (para 29) in order to reduce the reader’s perception of the scope of the information he was asked to provide. He states, quote: “[...] the extracts from this document have therefore been restricted to the conclusions and recommendations of the panel, as per the terms of the request:”

The expression “as per the terms of the request” is an unacceptable distortion of the real terms of the Request. I did not ask for the information to be restricted to the conclusions and recommendations. What I asked for was “the communication setting out the conclusions and recommendations”, from which it is clear that the Request refers to the entire document, not just a few sentences the Responder chooses to release in the hope of satisfying the Requester and the public.

My request for item C was more explicit: “I also reiterate my request for a full and complete copy of your letter to the SOJP in which you set out the “lessons in relation to the process and procedure of recording and processing complaints” drawn from the Panel’s examination of my Complaint.” The Responder has nonetheless only released isolated extracts.

Why is it necessary to disclose the entire documents (both items, B and C) and not just a few isolated paragraphs?

a) Because that is clearly what was requested.
b) Because the document extracts cannot be properly cited, for example in an academic or legal context (or indeed in the press), without knowledge of the name and credentials of the author, the identification of the recipient(s)(including eventual copies to other parties), the date of dispatch, and so on.
c) Because the partial content that has now been disclosed cannot be properly interpreted without the surrounding context.
In regard to item B, the full communication presumably explains how the conclusions and recommendations were established, what evidence was examined, who was consulted by the Panel, whether the Panel had input from, or interviewed, the Defendant / Complainee, why Mr. Howard Cooper was involved despite a strong protest from the Complainant, the degree of consensus as to the Panel’s conclusions (dissenting views...) and a wealth of other information that will serve not only to set the disclosed extracts into context (and thus reduce the risk of misinterpretation of that information) but also enable the public and the Island’s legislators to observe the practical workings of the Investigating Panel, and judge the integrity and effectiveness of the new disciplinary process as a whole.
Similar considerations also apply to item C – information without context all too easily becomes dis-information.
d) Because, in respect of both items B and C, as noted in my first Request for Internal Review (and explained in greater detail in my Disciplinary Complaint), there is good reason to believe that the communication and subsequent letter also contained conclusions and recommendations concerning deficiencies in the SOJP Crime Recording procedures which would have the effect that the Jersey public – and indeed the States Assembly and the Island Authorities – are not being accurately and fully informed about the Island’s crime statistics owing to the ‘disappearance’ of large numbers (many thousands over the years) of reported crimes from the SOJP's auditable records system. The Responder would no doubt agree that there is a constantly high level of public interest in this topic (witness the significant number of FOI requests on the subject of crime statistics), and this public interest outweighs the eventual motives for refusing to disclose the documents.

In his justification for disclosing only extracts and not the full documents, the Responder states, without reference to any relevant authority or precedent, that “Public interest is not in favour of exposure of personal information in relation to complaints that have not proceeded past an investigatory panel.”

Having thus generated an unsubstantiated criterion for not exposing personal information prior to an arbitrarily-chosen stage in the disciplinary process, the Responder then argues that “there would be no sufficient means of redaction of the documents to remove solely the identity of the subject, as it is public knowledge who was within the relevant roles at the time of the complaint. If such a redaction were to be undertaken, not only would the details of the individual need to be removed but all dates and a number of other references. The limited public interest in release of the document would be removed.”

I contend that the arguments in paras 34 and 35 are contrived and invalid, because the identity of the complainee / defendant can already be established from sources in the public domain, independently of any disclosure that may come about if items B and C are released without redaction.

Consequently, no worthwhile purpose relating to the Article 25 requirement to protect private data would be served by redacting any of the mentioned information from the documents and, as the Responder himself indicates, if redaction is not carried out then the limited public interest would remain intact. The correct action is therefore to disclose the complete unredacted documents in recognition of that public interest.

The assertion of para 36 is evidenced in the following manner:

a)    The subject of any disciplinary complaint can, by virtue of the wording of the Regulations, only ever be one of two individuals at any particular time: the incumbent CO and DCO of the SoJP. The Regulations are ‘tailor made’ for those two senior posts and apply to no other SoJP ranks and no-one outside the Force. Any person who voluntarily subjects him / herself to a tailor-made law, by virtue of their having accepted a very high-profile position in a public authority such as the SoJP, necessarily waives his / her expectation of anonymity in all matters relating to his / her professional activities.
b)    As the Responder himself points out, “it is public knowledge who was within the relevant roles at the time of the complaint”.
c)    [Text redacted]

Having established, solely from an examination of sources already in the public domain, that the only possible subject of the Disciplinary Complaint is [Name redacted], no useful purpose relating to the absolute exemption of Article 25 (Private Information) would be served by any attempt to redact his identity out of the requested documents. The Responder’s perception of that need for redaction is mere ‘wishful thinking’ and Article 25 cannot be used to justify his refusal to disclose the complete documents.

A final consideration on this topic of redacting [Name redacted] ‘personal information’ relates to the fact that the absolute exemption of Article 25 of the Law is designed to protect “personal data” as defined in the Data Protection (Jersey) Law 2012. Article 2(1) of this Law states: “Personal data means any data relating to a data subject.” Article 2(2) then defines “data subject” as: “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 [...]”

We can conclude from those definitions that the Chief Officer of the SOJP and his Deputy are “data subjects”, but only in their capacity as “natural, living persons”. However a complaint pursuant to the Regulations may well be targeted at the CO or DCO of the SOJP in his capacity as the top-ranking officer and legal representative of the force as a whole – i.e. in his capacity as the representative of a “corporate person”. A complaint might well be directed nominatively at “CO John Doe” but in reality it is being targeted at the corporate function, the head of the corporate body, and not personally at the current “natural, living” incumbent (this was certainly the case of the Complaint at the focus of this Request and Appeal). In that corporate capacity the officer ceases to be a “data subject” – and is not protected by the Data Protection Law.

Subsidiary matters

The observations in paras 43 to 48. relate to matters that were raised in the first Request for Internal Review, but not dealt with owing to the delivery of a Revised Final Response instead of an Internal Review Response. The following is a re-formulation of those previous observations taking account of the changed circumstances.

In the covering e-mail for the Original Response it was stated that “Your request and the response to your request will not published on the log of responses on the Gov.je website as this request details personal information.” In my first Request for Internal Review I refuted the validity of that justification.

A further e-mail (23 June 2020) in which the Central FOI Unit clarified the consequences of the modified FOI process, states that “After further discussion it has also been agreed that a redacted version of the original request and revised response will be published.” No reason was given for not publishing the Original Response and first Request for Internal Review, which are essential components in the development of this Request.

In response to that, and having decided to submit a second Internal Review Request, I suggested that publication should be postponed until the corresponding Internal Review Response had been delivered.

Given that a second Request for Internal Review has now been submitted (the present document), and this will lead to the delivery of an Internal Review Response, it will be appropriate to postpone publication and incorporate these additional elements.

In the pursuit of clarity and transparency, I strongly recommend that the published text should include all the stages in the modified process adopted in this case: Original Request, Original Response, first Request for Internal Review, Revised Final Response, second Request for Internal Review and Internal Review Response.

In relation to para 45, it would be appropriate for the Responder, or the Central FOI Unit, to confirm that all the information provided in this process is in the public domain, even if it has not (yet) been published on the gov.je website.

In the first Request for Internal Review I expressed concern over the fact that the document containing my Original Request and the Original Response was not attributed to any public servant, nor even a Scheduled Public Authority. Also, the text was not dated (other than by uncertain association with the covering e-mail). It therefore lacked essential information enabling it to be properly cited, for example in a legal or academic paper. These same deficiencies affect the Revised Final Response.

As a matter of general principle, I believe that the source of FOI responses and all other communications from public officials should be made known to the person making the request. Given that the Revised Final Response, like the Original Response, is not accredited to any specific source, I ask that the Internal Review Response shall identify all those involved in drafting the Original Response, the Revised Final Response and the Internal Review Response.

Internal Review response

This review has been completed by two senior members of the States of Jersey, independent of the original decision making process.

Whilst they have reviewed the arguments raised by the Requester, they have not sought to respond to these arguments, but have instead reviewed the information provided within the Freedom of Information review, to ascertain whether the utilised exemption was correctly applied.

The panel did note an inaccuracy within the submission of the Requester at point 13. The Requester states that the preliminary investigation of a complaint (if not dealt with internally within the SOJP) is conducted by the JPCA. To clarify this point, it should be noted that the JPCA do not conduct or undertake any investigations into complaints. The role of the JPCA as defined in the law is to 'supervise' an investigation as set out in Article 8 of the Police (Complaints and Discipline) (Jersey) 1999 - Referral of other matters to the Authority, and Article 9, Supervision of investigation of a member of the Force

A (i)

I request the names of the individuals appointed to the Investigating Panel.

The panel noted the Review response error in stating that Mr Howard Cooper was a Government employee and noted that Mr Cooper was a lay person appointed to the public office of Chair of the Jersey Police Complaints Authority. They clarified that the Jersey Police Complaints Authority is an independent organisation set up by the States of Jersey under the Police (Complaints and Discipline) (Jersey) Law 1999.

The Internal Review panel then discussed the role of the third member of the investigating panel and their expectation of privacy. After discussion it was considered that, due to his previous political career and high-profile positions, there would be sufficient public interest in releasing this information. They therefore confirmed the third panel member was Mr John Refault.

A (ii)

The identity (or even the official functions or departmental affiliation) of the person(s) who advised the Panel about the conflict of interests affecting Mr. Cooper

The Internal Review Panel considered the Review had provided a significant response to this request, in that the request asks for ‘even the official function or departmental affiliation’ of the person who provided advice.

They noted the Review had confirmed that advice was provided by a senior member of the Strategic Policy, Planning and Performance department.

However, they also considered the senior position of the Government employee in question and agreed the seniority of the role weighted this information towards release. They therefore confirmed the Government employee advising the panel was the Director General, Mr Tom Walker.

A copy of the communication from the Chairman of the Investigating Panel dated 11th October 2019 setting out the Panel’s conclusions and recommendations.

A full and complete copy of your letter to the SOJP in which you set out the “lessons in relation to the process and procedure of recording and processing complaints” drawn from the Panel’s examination of my Complaint.

The Internal Review Panel reviewed the letters in question. They considered the previous extracted information provided and agreed that whilst this went some way to answering the applicants request, it did not provide the full information requested. They did not consider the Review had purposefully distorted the information requested at Question B, rather the Review had sought to provide information within a very strict definition of Article 25 (Personal Information) of the Freedom of Information (Jersey) Law 2011.

The Internal Review Panel then considered whether they believed that a more lightly redacted copy of the letters would breach the privacy of either the complainant or the complaint subject.

After due review, the Internal Review Panel agreed that it would be difficult to sufficiently redact the letters to avoid the potential for identification of the complaint subject. They did, however, agree that due to the seniority of the complaint subject, the redacted letters should still be released.

Chairman of JPCA to MHA re disciplinary complaint (11 October 2019)_Redacted

MHA to SOJP re disciplinary complaint (21 October 2019) _Redacted

The redacted letters are therefore attached to this Internal Review, with the redactions applied under the following exemptions:

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 32 Legal professional privilege

Information is qualified exempt information if it is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings

Public interest test:

The Scheduled Public Authority (SPA) is withholding the release of the information as some of the information contained in the letters relates to the provision of Law Officer advice. Article 32 is a qualified exemption, which means that a public interest test is required. The public interest in disclosing information when this article is being applied must weigh particularly heavily in favour of disclosure in order to outweigh the inherent right to privilege. It is not considered the public interest in disclosing the information is outweighed by that in maintaining the exemption, as it is designed to protect the constitutional Law Officer privilege.

We note that parts of the redacted portions of the letters relate to your own personal data – should you wish to have this information released to you, the process for Subject Access Requests would need to be followed. It is noted that a requirement for Subject Access Request would be to provide verification of your identity

The Subject Access Portal can be accessed at the following link:

How to make a Subject Access Request (SAR)

In relation to your final request, that the drafter of the original response be identified, we would note there is no obligation under the Freedom of Information (Jersey) Law 2011 to identify such individuals.