Government of Jersey

LPG consumption by Government departments (FOI)

Produced by the Freedom of Information office
Authored by Government of Jersey and published on 10 October 2023.
Prepared internally, no external costs.

Original Request

Pllease confirm the following annual statistics on Liquefied Petroleum Gas (LPG) consumption by the Government of Jersey departments from Jersey Gas for the last 12 years:

Per Government of Jersey department:

(i) Tariff type and £ per kWh charged for mains gas supply, and standing charge in £ per annum;

(ii) Quantity of mains gas consumed, in ft3 and or M3 (depending on meter type), per department; and

(iii) Total sum of invoices paid.

Per Government of Jersey department if consumption is by bottled gas as opposed to mains gas:

(i) Total kg consumed; and

(ii) Total sum of invoices paid.

Total sum paid by Government of Jersey for all LPG mains gas and bottled gas consumed by all departments.

Original Response

The Government of Jersey does not maintain a record of the requested information broken down by department, therefore Article 10 of the Freedom of Information (Jersey) Law 2011 applies.

The Government of Jersey’s systems are not configured in a way that will allow the extraction of the information requested. A manual search of records would be required in order to obtain this information.

It has been estimated that to provide the information requested would exceed the 12.5 hours allowed for Freedom of Information responses in accordance with Regulation 2 (1) of the Freedom of Information (Costs) (Jersey) Regulations 2014. Article 16 of the Freedom of Information (Jersey) Law 2011 has therefore been applied and this part of the request will not be processed further.

However, the information in the attached spreadsheet, originally provided by Island Energy, provides the mains gas usage by properties within the Government of Jersey estate portfolio, managed by Jersey Property Holdings for 2010 to October 2021.

Personal Information has been redacted in accordance with Article 25 of the Freedom of Information (Jersey) Law 201.1

Information regards the tariff type, £/kWh charged for mains gas supply, standing charge in £/annum and total sum of invoices paid are exempt under Article 33 (Commercial Interests) of the Freedom of Information (Jersey) Law 2011 as they are considered commercially sensitive.

Article 33 is a qualified exemption; therefore, a public interest test has been applied and is shown at the end of this response.

Island Energy info re JPH January 2011 to October 2021 Redacted.xlsx

The Government of Jersey does not maintain records regarding the consumption of bottled gas per department, therefore, this information is not held and Article 10 of the Freedom of Information (Jersey) Law 2011 applies.

The requested information is exempt from release under Article 33 (Commercial Interests) of the Freedom of Information (Jersey) Law 2011 as it is considered commercially sensitive.

Article 33 is a qualified exemption; therefore, a public interest test has been applied and is shown at the end of this response.

Articles applied

Article 10 - Obligation of scheduled public authority to confirm or deny holding information

(1) Subject to paragraph (2), if –

(a) a person makes a request for information to a scheduled public authority; and

(b) the authority does not hold the information, it must inform the applicant accordingly.

(2) If a person makes a request for information to a scheduled public authority and –

(a) the information is absolutely exempt information or qualified exempt information; or

(b) if the authority does not hold the information, the information would be absolutely exempt

information or qualified exempt information if it had held it, the authority may refuse to inform the applicant whether or not it holds the information if it is satisfied that, in all the circumstances of the case, it is in the public interest to do so.

(3) If a scheduled public authority so refuses –

(a) it shall be taken for the purpose of this Law to have refused to supply the information requested on the ground that it is absolutely exempt information; and

(b) it need not inform the applicant of the specific ground upon which it is refusing the request or, if the authority does not hold the information, the specific ground upon which it would have refused the request had it held the information.

Article 16 - A scheduled public authority may refuse to supply information if cost excessive

(1) A scheduled public authority that has been requested to supply information may refuse to supply the information if it estimates that the cost of doing so would exceed an amount determined in the manner prescribed by Regulations.

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.

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).

Public interest test

The release of information relating to the tariff type offered by Island Energy including the £/kWh charged for mains gas supply, the standing charge in £/annum and total sum of invoices paid could potentially disadvantage Island Energy and the Government of Jersey’s ability to retain commercial advantage in any future tender process.

This could also result in the Government’s inability to secure best value for the taxpayer and this will likely prejudice the Government as its bargaining power decreases.

It is in the public interest to be made aware of any fuel tariffs and costs being charged by Island Energy in relation to the supply of LPG. However, it is considered that that the likely prejudices to Island Energy, the Government and the taxpayer should this information be released outweigh the argument that the release is in the public interest.

Internal Review Request

I write to respectfully request an internal review of the below decision. My reasons for the request are as follows:-

To SoJ's answer to point 1 of the FOI request

1.1.

It is not accepted that the historic tariff, standing charge, and invoice data (the “Data") which has been requested is “commercially sensitive" and exempt under article 33. For instance:-

a)IEG owns the mains gas infrastructure and benefits from a 100% monopoly in the supply of mains gas in Jersey, Guernsey and the Isle of Man.
b) In view of 1.1(a), IEG has zero risk of competing suppliers attempting to bargain for the supply of the gas to SoJ, never mind undercut it.
c) Equally, in view of 1.1(a), SoJ has no option other than to bargain with IEG and/or any prospective owner of IEG, for the supply of mains gas.
d) IEG tariff’s, whilst live, are made public.

1.2.

By analogy, if SoJ can and does (i) properly disclose the price of its third party consultants and consultation reports and IEG financial statements to the public inter alia, then it follows that SoJ can and should (ii) properly disclose the historic annual prices for its supply of mains gas and/or the Data.

1.3.

It is not accepted that >12.5 hours would be required to add historic tariff’s and annual price totals against the annual consumption for each government consumer listed in the spreadsheet. For instance:-

a) Ordinarily, IEG tariff’s and standing charges increase only once a year.
b) It is assumed that most if not all of the government consumers share the same IEG tariff bargained for by SoJ.
c) In view of grounds 1.3(a)-(b), the search by SoJ would be limited to one tariff per annum.
d) In the alternative, it is within the power of SoJ, as customer of IEG, to simply request IEG to provide the historic tariff and standing charge data, taking minutes not hours.

1.4.

Grounds for opposing the department’s public interest arguments are provided below.

To SoJ's answer to point 2 of the FOI request

2.1.

The department erred in failing to divulge and/or provide the requested bottled gas consumption and price data based on the records it does hold.

2.2.

Grounds 1.3(d) is repeated, insofar it is within the power of SoJ, as customer of IEG, to simply request IEG to provide the requested data, taking minutes not hours.

To SoJ's answer to point 3 of the FOI request

3.1.

Grounds 1.1-1.4 are repeated.

3.2.

Nothing "commercial sensitive”, remotely or otherwise, can be taken from the sums that SoJ pays IEG for mains gas and bottled gas per annum.

To SoJ’s public interest test argument

4.1.

The starting position is that article 33 does not apply for the reasons given above and the public interest test therefore falls away.

4.2.

Alternatively, it is not possible to discern SoJ’s arguments and the merits thereof. For instance:-

a) SoJ has failed to explain how its release of the information "could potentially disadvantage" IEG and SoJ.
b) SoJ has failed to explain what it means by "future tender process”. Does this concern the future bargaining of tariff’s between IEG and SoJ?
c) In view of grounds 1.1(b)-(c) above, the suggestion that IEG and SoJ undertake or propose to undertake a "tender process” is rejected.

4.3.

Alternatively, given the commercial position and relationship described at grounds 1.1(a) and 1.1(b)-(c) respectively, any and all future bargaining between IEG and SoJ could in no way be prejudiced by the release of the historic Data and/or historic sums paid by SoJ for the annual supply of mains gas and bottled gas.

4.4.

Alternatively, in all of its circumstances, the "public interest test” militates in favour of disclosing the information to the public.

IEG and the FOI law.

5.1.

Given that IEG are not party to the FOI law, IEG are not entitled to have a say in any decision made under the FOI law.

5.2.

In view of ground 5.1, any decision or decision making process by SoJ that takes account of views expressed by IEG shall be deemed erroneous and/or void ab initio.

Internal Review Response

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

The original response has been reviewed and assessed to identify whether the application of any exemptions had been applied correctly and whether it was appropriate to withhold information.

1.1 (1 to 4)

Island Energy (IE) may be the only supplier of mains gas in Jersey, however, the information was not withheld to avoid the risk of IE’s charges being undercut.

Information that would allow the tariff to be calculated was withheld to protect IE’s commercial interest since IE may offer different tariffs to various customers.

The release of the tariff details may put IE at a commercial disadvantage regarding any future negotiations required with other customers as the tariff being provided to the Government of Jersey would be in the public domain.

The Government of Jersey does not hold any live IE tariff information, therefore, this would need to be requested directly from IE.

It should be noted that IE are not a Scheduled Public Authority under the Freedom of Information (Jersey) Law 2011, therefore they are not required to respond to a Freedom of Information request. The Government of Jersey is only obligated to provide information held at the time of the submission of a request for information and not create or manipulate data to provide a response.

1.2 and 1.3

It should be noted that IE is a service supplier and not a third-party consultant and IE’s tariff information is not provided in the Government of Jersey’s Annual Report and Accounts.

The Government of Jersey does not hold IE’s financial records, therefore, a request would need to be submitted to IE in relation to their availability.

Freedom of Information responses relate to information already held, therefore, the Government of Jersey is not required to request additional information from external parties, for example historic tariffs from IE, or create new data sets that are not already held in that format such as a breakdown of costs and tariffs per department.

The public can request information directly from IE, however, as detailed above, IE are not required to provide any information under the Freedom of Information legislation.

IE manually invoice the Government of Jersey regarding mains and bottled gas supplied. The Government of Jersey’s systems are not configured in a way to extract the requested information and a manual search of records would need to be carried out for the requested 12-year period and it has been estimated that this would take longer than the 12.5 hours allowable under the law when responding to a Freedom of Information request.

Each site supplied may have its own tariff rate and be identified as an individual entity, the site may also be used by more than one department. Some of the tariffs may have been negotiated with IE but are not published by IE, therefore the tariffs are considered to be commercially sensitive.

The Government of Jersey cannot assume how often and when the IE tariffs are changed, therefore, this would also need to be checked manually.

The invoices would need to be reviewed manually per department since they may include items that do not relate to the gas supply such as connection charges, service and call out charges.

In addition, joint invoices may have been issued in relation to mains and bottled gas supplied and these would need to be manually separated and calculated to obtain the supply and usage figures.

However, even if the information could be extracted within the allowable period any information that would allow the tariff to be calculated which would be exempted under Article 33(b) (Commercial Interests) of the Freedom of Information (Jersey) Law 2011.

The consumption information regarding the Government of Jersey sites managed by the Jersey Property Holdings team was provided in the original response, however, the cost information was exempted from release under Article 33(b) (Commercial Interests) since its provision would allow the tariff to be calculated.

Following the Panel’s review, it is considered that the application of Article 33(b) and Article 16 of the Freedom of Information (Jersey) Law 2011 regarding the time required to extract the system be upheld.

2.1

As detailed above the Government of Jersey would need to manually review the IE invoices to determine the supply of bottled gas to each department and that this would take longer than the 12.5 hours allowable.

Following the Panel’s review, it is considered that the application of Article 16 be upheld.

2.2

As detailed above the Government of Jersey needs to consider information already held when responding to a Freedom of Information request and it is not required to request further information or create new data sets.

3.1

The response is the same as detailed in the above response to 1.1 to 1.4.

3.2

Following the Panel’s review, it is considered that the total sum paid to IE by each of the Government of Jersey’s departments can be provided. The total cost information for 2011 to 2022 is shown in the attached spreadsheet.

It should be noted that the attached IE figures include any connection fees, service or call out charges along with the supply costs.

Island Energy Gas Payments 2011 to 2022 by Department.xlsx

4.1 and 4.2

Following the Panel’s review, it is considered that the application of Article 33(b) (Commercial Interests) should be upheld as detailed above as the provision of the costs along with the amount of gas supplied would allow the specific tariffs to be calculated.

The Government of Jersey is aware that IE are currently the only supplier of mains gas, therefore, they are not currently able to negotiate with any other suppliers regarding tariffs to supply mains gas.

However, consideration also needs to be given to IE’s commercial interest and their ability to negotiate their mains gas tariffs with their other customers.

There are other bottled gas suppliers in Jersey, therefore, the provision of the annual consumption details along with the total annual costs would allow the costs per bottle to be determined. If the Government of Jersey was able to extract this information within the 12.5 hours allowable, it is considered that it would be exempt from release under Article 33(b) (Commercial Interests) since the release of this information could affect the Government of Jersey’s and IE’s ability to negotiate contracts with other customers or suppliers if the cost per bottle was in the public domain.

If the tariff or cost information was already in the public domain then IE may be at a disadvantage if another company was tendering to supply the bottled gas (or mains gas if there was an alternative supplier) since they would already know what tariffs IE were offering and would be able to provide a lower tender to try to secure the contract which could disadvantage IE.

As previously stated, consideration also needs to be given to IE regarding the release of commercially sensitive information. IE are not required to disclose the tariffs that they offer to specific customers, therefore, details regarding the tariffs offered to the Government of Jersey should be exempt from release since their public disclosure could disadvantage IE’s negotiations with new or existing customers in relation to the tariffs being offered.

Therefore, following review the Panel considered that the application of Article 33(b) (Commercial Interests) should be upheld.

4.3

This point is moot since the Government of Jersey is not able to extract the tariff information from their systems within the 12.5 hours allowable as detailed above.

Article 19 of the Freedom of Information legislation states that information that would generally be exempt under Article 33(b) (Commercial Interests) should be provided if it is older than 30 years. The requested information is for the period 2010 to 2022, therefore, it is not over 30 years old and is still considered to be commercially sensitive.

4.4

In accordance with Article 9(2) of the Freedom of Information (Jersey) Law 2011, the Government of Jersey, can withhold information under a qualified exemption, e.g., Article 33(b), if is satisfied that the release of this information is outweighed by the public interest in in withholding it from release.

A public interest test was undertaken and it was considered that the protection of IE’s commercial interest in relation to future customer negotiations outweighed the public’s interest in receiving the cost and tariff information.

Following review, the Panel considered that the application of Article 33(b) (Commercial Interests) should be upheld.

5.1 and 5.2

IE has not been involved with the Government of Jersey’s response to this Freedom of Information request, however, as detailed above IE’s commercial interests also need to be taken into consideration in relation to the release of the IE tariffs and bottled gas price that they provide to the Government of Jersey.

As stated previously the Government of Jersey is aware that IE is not covered by the Freedom of Information legislation.