Correspondence between FOI team and Audiology department (FOI)

Original Request 

Hearing aid tubes replacement FOI (gov.je) 

Please can I have sight of the correspondence (email or paper) prior to 1 September 2022 between the FOI Department and the Audiology department regarding the reply given in the above link. 

Original Response 

Please see the email sent to the Health and Community Services' (HCS') Audiology Department by the HCS FOI Team below.

Correspondence - Redacted (pdf)

The names of those within the HCS Audiology Department and the HCS FOI Team have been redacted to protect employee privacy. Therefore, Article 25 of the Freedom of Information (Jersey) Law 2011 has been applied.

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 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.

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

The Freedom of Information (FOI) request relating to the correspondence between the FOI Department and the Audiology Department prior to 1 September 2022 in respect of the above request was received by Health and Community Services (HCS) on 28 September 2022. A response was provided to the applicant on 25 October 2022.

Following receipt of the FOI response, the applicant requested an Internal Review on 25 October 2022 querying the completeness of the response and the use of Article 25 of the Freedom of Information (Jersey) Law 2011.

The applicant advised that “Because of your redaction, there is no evidence that the email in the correspondence was actually sent to the audiology department, and not elsewhere to administration. “To:” gets nowhere but a redacted blank and there is no indication that it is sent to an audiologist.” and that “There is also no replay [sic] from audiology attached. A reply could take out the name of the audiologist (even though that is a matter of public record) and retain their title. There must have been a reply for FOI to give me a reply previously! Consequently, I’m afraid I consider this incomplete and not an answer to the question.”

Internal Review Response

On the 26 October 2022, the HCS Caldicott Guardian and GMC Responsible Officer, and the Government of Jersey Data Protection Officer were asked to undertake the Internal Review. Neither party had been involved in composing the original response or in the original decision to apply Article 25 (Personal Information). 

The Internal Review was coordinated and administered by the HCS FOI Officer and took place on 4 November 2022 at Jersey General Hospital. The in-scope FOI response and the Internal Review Procedure were shared with both reviewers on this day.

Both the HCS Caldicott Guardian and GMC Responsible Officer, and the Government of Jersey Data Protection Officer were asked to consider whether:

• the Freedom of Information Law (Jersey) Law 2011 has been properly applied and whether the information requested genuinely falls within the exemption(s) cited 
• all material in scope of the query parameters was supplied
• there were any other options available in order to respond to the request
• it is possible to provide you with any further information, and 

They will also provide an outcome of the internal review by stating whether:

• the original decision is upheld, or 
• the original decision is reversed in part or in full, or 
• the original decision is modified

Has the exemption been properly applied?

The exemption cited was Article 25: Personal Information - Freedom of Information (Jersey) Law 2011, which states:

(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.

As the email communications requested identified two individual data subjects as defined in the Data Protection (Jersey) Law 2018, Article 25 (2) is relevant in this case. 

Personal data for the purpose of the Data Protection (Jersey) Law 2018 is defined as:

Article 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. 

Having reviewed the definitions as stated in the relevant legislation, it was agreed that the application of Article 25: Personal Information was appropriate in this case, as employee names constitute their personal data.

Government of Jersey employees below the level of Tiers 1 are protected from identification in email communications for the purposes of Freedom of Information disclosure, and their names are routinely redacted in accordance with both corporate policy and Data Protection legislation.

Was all material in scope of the query parameters supplied? 

All communication between the FOI Department and the Audiology Department, including that between named individuals within those teams, prior to 1st September 2022 was supplied in line with the request. To be clear, following the email sent to the Audiology Department point of contact no response was received by HCS FOI.

Were there any other options available? 

A group email is available for the Audiology Department. In exploring whether this FOI query should have been addressed to the group email, the importance of ownership and accountability for responding to FOI requests was discussed. It was determined that it is appropriate to contact individuals with specific knowledge or responsibility for departments or Care Groups to provide the information required to complete FOI responses and that using a group inbox would seldom be appropriate.

As it was necessary to redact the name of the individual who was the point of contact in the Audiology Department, and as no response was received identifying their role which could have been disclosed, permission could have been sought from the Audiology Department employee to identify their job title and disclose this in the FOI response as the addressee.

Is it possible to provide you with any further information?

Health and Community Services could seek the consent of the Audiology Department employee to disclose details of their role.

In addressing the other concerns raised surrounding a lack of correspondence documenting the Audiology Department’s response to the linked FOI request, HCS can confirm that the response to the FOI request was not provided by an employee of the Audiology Department.

Outcome

It was agreed that HCS appropriately applied an absolute exemption (Article 25: Personal Information), in order to protect the privacy of individual employees. Therefore, the original decision is upheld. 

In relation to supplying all documentation requested, HCS did supply all communications in scope of the criteria defined in the request. Therefore, the original decision is upheld.