Government of Jersey

Tripartite Group details (FOI)

Produced by the Freedom of Information office
Authored by Government of Jersey and published on 16 July 2024.
Prepared internally, no external costs.

Original Request

For the period 1 February 2022 to 1 May 2022 (the "Relevant Period"), please confirm:

How many meetings of the Tripartite Group took place.

The dates of the meetings of the Tripartite Group.

The participants in the meetings.

Whether the Government of Jersey has copies of

i) the minutes of the meetings; and
ii) any other notes of what was discussed at the meetings.

Please also provide a copy of the agreed Terms of Reference for meetings of the Tripartite Group, in force during the Relevant Period.

Original Response

The States of Jersey Police can confirm that there were three meetings within the relevant period.

The dates of the meetings were 4 February 2022, 4 March 2022 and 1 April 2022.

Attendees at the meetings were made up of members of the following:

The States of Jersey Police
The Financial Intelligence Unit
The Law Officers’ Department
The Economic Crime and Confiscation Unit and
Jersey Financial Services Commission

Details of individuals attending are withheld under Article 25(2) of the Freedom of Information (Jersey) Law 2011.

Government of Jersey do not attend the meetings of the Tripartite Group, are not sent minutes, and would not hold notes of the meetings.

The Terms of Reference document is withheld as it is an internal document containing a description of processes used by intelligence officers, investigators, prosecutors and the Jersey Financial Services Commission and Article 42 (a), (b), (c), (g) and (h) apply. In addition, the document contains processes in relation to the tackling of serious financial crime including the financing of terrorism therefore Article 27(1) applies.

Articles 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.

Article 27 - National security

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

Article 42 - Law enforcement

Information is qualified exempt information if its disclosure would, or would be likely to, prejudice –

(a) the prevention, detection or investigation of crime, whether in Jersey or elsewhere;

(b) the apprehension or prosecution of offenders, whether in respect of offences committed in Jersey or elsewhere;

(d) the assessment or collection of a tax or duty or of an imposition of a similar nature;

(e) the operation of immigration controls, whether in Jersey or elsewhere;

(f) the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained;

(g) the proper supervision or regulation of financial services; or

(h) the exercise, by the Jersey Financial Services Commission, of any function imposed on it by any enactment.

Public Interest Test

Article 42 is a prejudice based qualified exemption, which means that consideration must not only be given to both being in the public interest for withholding the Terms of Reference balanced against the public interest for withholding them, it must also be able to be shown that that the release of the Terms of Reference would, or would be likely be, prejudicial.

Prejudice test

Disclosure would be likely to prejudice the present or future investigation or prosecution of crime, or supervision or regulation of financial services by the Commission, by revealing agencies’ processes to those under investigation now or in the future.

Factors in favour of the release of the document

Disclosure would illustrate to the general public that agencies within Jersey are working collaboratively towards combating financial crime.

Factors in favour of withholding the document

Of the parties to the document, only the police are a Scheduled Public Authority. Procedures and policies used by the other parties are not intended to be the subject of Freedom of Information access, and it is not right that they should be obtained via the only party who is such an authority. The request is for information that deals with their actions and processes, and their actions and processes are not those of a Scheduled Public Authority.

Caution should be applied to the disclosure of internal documents prepared for law-enforcement purposes.

Balance Test

It is considered that whilst it is in the public interest to show that organisations in Jersey are working together to combat financial crime, it is not necessarily in the public interest for the public to know all the details of the way in which information is processed by the organisations involved.

There is an overwhelming public interest in maintaining confidentiality around live criminal investigations and the processes of investigative agencies. Criminals might benefit from public disclosure of the document by adjusting their conduct accordingly.

The fact that two of the three relevant public authorities are not Scheduled Public Authorities suggests that the business of the group does not fall centrally into the type of business that Freedom of Information Law is intended to cover.

It is not thought that the public interest would be served significantly by disclosure of this particular document – disclosure would only serve to illustrate to the public that the agencies are working collaboratively, which the public already knows from the numerous documents already published by the Government of Jersey.

Internal Review Request

This is a complaint about the response (the “Response”) of the Scheduled Public Authority (the “SPA”) to the Request (referenced above) and a request that an internal review of the Response be carried out, without delay.

In accordance with the Office of the Information Commissioner - Code of Practice on the discharge of Scheduled Public Authorities’ functions under the Freedom of Information (Jersey) Law 2011, issued in accordance with Article 44 of the Law (the "Code of Practice"), amongst other things, the review:

must be a fair, thorough and independent review of the process adopted and decisions taken by the SPA pursuant to the Freedom of Information (Jersey) Law 2011 (the "Law");
should enable a fresh decision to be taken on reconsideration of all the factors relevant to the request;
must be undertaken by someone senior to the original decision maker where this is reasonably practicable; and
should take into account any further matters raised during the investigation of the complaint.

It is requested that these submissions are presented to the members of the Internal Review Panel appointed, in order that the matters set out herein may be given full and careful consideration as part of the Internal Review Panel's independent review of the Response.

Introduction

The Complainant requests that an internal review of the Response be carried out. The Complainant submits that, in particular, the following two aspects of the Response were incorrect:

1. The decision to withhold to name the individuals attendees of the meetings under Article 25(2).
2. The decision to withhold the Terms of Reference under: (i) Article 42(a), (b), (c), (g); and (ii) Article 27(1).

Each of these aspects of the Response addressed further below.

Names of the individual attendees – Article 25(2)

The names of the individual attendees attending the meetings were withheld under Article 25(2).

Article 25(2) provides that 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.

It is accepted that the names of individuals per se constitute personal data within the meaning of the Data Protection (Jersey) Law 2018.

In a previous decision notice:

decision-notice-final-version-2-57259.pdf (jerseyoic.org)

OIC Reference 202-03-57259), the Commissioner stated that in deciding whether disclosure of personal data would be unfair, and thus breach the first data protection principle, the Commissioner takes into account a range of factors including:

“a. The reasonable expectations of the individual in terms of what would happen to their personal data. Such expectations could be shared by:

i. What the public may have told them about what would happen to their personal data;
ii. Their general expectations of privacy, including the effect of Art.8 of the European Convention on Human Rights (ECHR);
iii. The nature or content of the information itself;
iv. The circumstances in which the personal data was obtained;
v. Any particular circumstances of the case, e.g. established custom or practice within the public authority; and
vi. Whether the individual consented to their personal data being disclosed or, conversely, whether they explicitly refused.

b. The consequences of disclosing the information, i.e. what damage or distress would the individual suffer if the information was disclosed? In consideration of this factor the Commissioner may take into account:

i. Whether information of the nature requested is already in the public domain;
ii. If so, the source of such disclosure; and even if the information has previously been in the public domain, does the passage of time mean that disclosure now could still cause damage or distress?”
iii. In the same decision notice, the Commissioner also noted as follows:

"56. Further, notwithstanding the data subject’s reasonable expectations or any damage or distress caused to them by disclosure, it may still be fair to disclose the requested information if it can be argued that there is a more compelling legitimate interest in disclosure to the public.

57. In considering ‘legitimate interests’, in order to establish if there is a compelling reason for disclosure, such interests can include broad general principles of accountability and transparency for their own sake, as well as case specific interests. In balancing these legitimate interests with the rights of the data subject, it is also important to consider a proportionate approach.”

In the present case, the personal data is simply the individuals’ names.

It appears that the SPA may have erroneously applied a blanket policy to withhold the names of individuals – exactly the approach that was criticised by the Commissioner in the decision notice cited above. As the Commissioner noted at paragraph 62, “It is not sufficient to simply identify an individual as being of a particular rank and claim an exemption in every single instance and redact their details.”

Without knowing the individuals whose names have been redacted, the Complainant is at a disadvantage. The Internal Review Panel is asked to carefully scrutinise the decision to withhold the name of each individual, individually; as noted above, a blanket policy is not the correct approach to take.

The Complainant notes that it is apparent from the Response the individuals’ whose names have been withheld are all employees of: (a) the States of Jersey Police; (b) the Financial Intelligence Unit; (c) the Law Officers’ Department; (d) the Economic Crime and Confiscation Unit (ECCU); or (d) the Jersey Financial Services Commission (JFSC).

The individuals attended the meetings in their capacity as public officials; not private individuals. In circumstances where the individuals were carrying out their public functions, they cannot reasonably have expected that their names would remain public; certainly they must have had the expectation that their actions in their capacity as public officials would be subject to greater scrutiny than would be the case in respect of their private lives.

For all individuals concerned, it is noted that they were actively attending meetings, and had been selected to represent their organisation at that meeting; this is not comparable to a case of junior officials being merely copied into email correspondence.

The Internal Review Panel should carefully consider for each individual the extent to which their role is a public facing role.

At this stage, the following general comments can be made.

The States of Jersey Police is a public-facing organisation. Police officers cannot reasonably expect that their name would be kept private. For example, police officers can be expected to attend court and give evidence. Police officers also regularly speak to, or feature, in the media.

By way of example, [name redacted] role was frequently publicised. Examples include:

[Link to third party data removed]

which contains extensive biographical details about [Third party data] and says that he is available to speak to the media.

[Link to third party data removed]

which is a very detailed article, about [Third party data] and DI [Third party data], and their roles at the time.

[Link to third party data removed]

The States of Jersey Police frequently publishes org charts, listing members of the police. See, by way of example:

[Link to third party data removed]
[Link to third party data removed]
[Link to third party data removed]

lists, amongst others [Third party data] (Detective Inspector), [Third party data] (Detective Chief Inspective, [Third party data]). [Third party data] (Detective Inspector), [Third party data] (Detective Inspector, [Third party data]).

Notably, the org charts include those with ranks of Sergeant and Inspector (i.e. it is not just the most senior officers listed).

With respect to the SOJP, therefore, it is not simply senior ‘decision makers’ that would have an expectation that they would be identified; officers of all ranks can reasonably be expected to have had some an expectation.

The comments above relate also to the Financial Intelligence Unit which was, in any event, part of the SOJP at the relevant time. The members of the Financial Unit have also publicised their names and roles – see, by way of example, this article which not only mentions [name redacted], then acting head of Financial Unit, but also includes their photograph:

[Link to third party data removed]

Another example is that [Third party data] and [Third party data] from the States of Jersey Police Financial Intelligence Unit (JFIU) delivered public updates:

[Link to third party data removed]

As for the Law Officers’ Department, these are again public facing roles. The biographies of the Attorney General and the Solicitor General are published on the Government of Jersey’s website:

[Link to third party data removed]

The fact that [Third party data] is the Head of the Criminal Division, has been publicised by the Law Officers’ Department:

[Link to third party data removed]

Members of the Law Officers’ Department frequently appear in court and their names and roles are reported. See, for example, these articles which mentions [name redacted]:

[Link to third party data removed]
[Link to third party data removed]

It cannot be said, therefore, that members of the Law Officers’ Department would expect their roles to remain private.

The same applies to ECCU, which is part of the Law Officers’ Department. Further, as noted below, members of ECCU publicise their role on LinkedIn.

Names of individuals working at the JFSC are also readily available. See, for example:

[Link to third party data removed]

(which also names of officers of the SOJP and the Law Officers’ Department)

[Link to third party data removed]

states that [Third party data] was [Third party data], and contains thier photograph

[Link to third party data removed]

publicises the appointment of [Third party data] as [Third party data]

These are but a few of literally hundreds of examples.

It is also notable that many members of the SOJP, the Law Officers’ Department, ECCU and the JFSC publicly promote and advertise their roles on social networks such as LinkedIn.

By way of example, [Third party data], an [Third party data] at the Law Officers’ Department:

[Link to third party data removed]

Similarly, [name redacted], who lists himself as [Third party data], Economic Crime and Confiscation Unit at Law Officers’ Department” – see

[Link to third party data removed]

Other members of ECCU, including civilian investigators, legal advisers and paralegals, also advertise their roles on LinkedIn.

This is not intended as a criticism of such individuals; the Complainant is not alleging that they have done anything wrong by publicising their roles. Rather, the error was the SPA’s determination to withheld the identity of the attendees of the meetings, in circumstances where they cannot have had a reasonable expectation of privacy regarding their name and role.

For any individual whose name has been withheld, it should be verified whether they have themselves publicised their role through LinkedIn or other social networks. In such case, there certainly can have been no expectation of privacy, regarding their name and public role.

There is a legitimate interest in disclosing the names of the individual attendees, namely the principle of accountability and transparency. Further, by disclosing which individuals attend such meetings, the public will gain an insight into how seriously the various organisations treat such meetings; if the Chief Officer of the SOJP or Attorney General attends meetings, for example, this is a matter of public interest, as opposed to if such meetings were attended by very junior representatives only.

It is notable that the SPA has not indicated that there would be any significant adverse consequences from disclosure of the names of the individual attendees. It is submitted that this is because the SPA cannot credibly point to such adverse consequences, given that the names of such individuals (and their roles) are already a matter of public record – in most cases because of publication by the individual themselves and / or the organisation they work for.

For all of the above reasons, the names of the individual attendees of the meetings should be disclosed, as requested by the request.

Decision to withhold the Terms of Reference under: (i) Article 42(a), (b), (c), (g); and (ii) Article 27(1)

Article 42 (a), (b), (c), (g)

In the Response, it is indicated that the Terms of Reference has have withheld on the basis of Articles 42(a), (b), (c) and (g) of the Law. Pursuant to those Articles, information is qualified exemp ift [sic] its disclosure would, or would be likely to, prejudice: the prevention, detection or investigation of crime, whether in Jersey or elsewhere (Article 42(a)); the apprehension or prosecution of offenders, whether in respect of offences committed in Jersey or elsewhere (Article 42(b)); the administration of justice, whether in Jersey or elsewhere (Article 42(c)); the proper supervision or regulation of financial services (Article 42(g)).

The Commissioner has previously issued a detailed guidance on the prejudice test:

The Prejudice Test 2.pdf (jerseyoic.org)

In the Commissioner’s guidance, it is noted that consideration of the prejudice test should involve the following three steps:

a) Identify the “applicable interests” within the relevant exemption.
b) Identify the “nature of the prejudice”. This means: (i) show that the prejudice claimed is “real, actual or of substance”; (ii) show that there is a “casual link” between the disclosure and the prejudice claimed.
c) Decide on the “likelihood of the occurrence of prejudice”.

In respect of step 2, the Commissioner’s guidance notes that: “there must be more than a mere assertion or belief that disclosure would lead to prejudice. There must be a logical connection between the disclosure and the prejudice in order to engage the exemption”.

The Response merely states: “Disclosure would be likely to prejudice the present or future investigation or prosecution of crime, or supervision or regulation of financial services by the Commission, by revealing agencies’ processes to those under investigation now or in the future.”

Notably, the Response does not mention the administration of justice, despite citing Article 42(c).

The Complainant submits that it is not credible to assert that real, actual prejudice would be caused by disclosure of the Terms of Reference.

The SPA appears to be suggesting that even if the Terms of Reference are published, there is still a real possibility that: (a) criminals will seek out and carefully scrutinise the Terms of Reference; (b) by reviewing the Terms of Reference, criminals will be able to acquire significant knowledge that will enable them to successfully avoid investigations and/or prosecutions in Jersey; and (c) criminals will use the knowledge obtained by reading the table of contents successfully avoid investigations in Jersey. This is far-fetched in the extreme.

Similar documents have already been publicly disclosed, the clear inference being that it was determined that their disclosure would not be prejudicial.

See, for example, ECCU’s Operating Protocol:

JFCU Operating Protocol - Redacted 20240307.pdf (gov.je)

See also the Memorandum of Understanding: Financial Crime Investigation & Criminal Asset Recovery in Jersey:

JFCU Operating Protocol - Redacted 20240307.pdf (gov.je)

Both the existence of the Tripartite Group, and the nature of its work, has been frequently publicised and discussed:

JFCU structure (jersey.police.uk)

“There is a significant overlap with certain aspects of the regulatory work of the Jersey Financial Services Commission (JFSC) and there is a close working relationship between the JFSC and JFCU. The JFCU are in frequent communication with a large number of financial institutions locally who are regulated by the JFSC; while the vast majority cause no concern, there are at times issues which require the joint consideration of more than one agency and the JFCU, JFSC and LOD meet regularly on a tripartite basis to discuss matters of mutual interest.”

“The Panel was informed of a Tripartite Group which consists of the Law Officers Department (LOD), the States of Jersey Police (SoJP) and the JFSC. With regards to financial crimes or contraventions, the Tripartite Group would look at the specific merits of each case and then arrive at a consensus through which route a case should be pursued. If a case needed to be pursued through the criminal route, the ultimate decision to prosecute rests with the AG. Non-financial crimes are not looked at by the Tripartite Group and rest exclusively with the LOD.”

and

r.107-2020.pdf (statesassembly.gov.je)

“Interagency cooperation on investigations is promoted through the Tripartite Group, which has overall responsibility for identifying, investigating and prosecuting matters related to ML/TF in Jersey. During the relevant period for the NRA analysis, the Tripartite Group was constituted by: (i) the Strategic Tripartite Group – which comprises the LOD (including ECCU), JFCU Operations, JFCU-FIU and JFSC - meets quarterly to review all matters related to Strategy; and (ii) the Operational Tripartite Group – which comprises the same agencies and evaluates and considers instigation of criminal or asset forfeiture investigations. In 2019, part i) was disbanded to streamline cooperation and now is constituted by a single group.

…

This is perhaps best illustrated by the tripartite forum. Members comprise senior representatives from the JFSC, JFCU, LOD and, more recently, ECCU. This forum has provoked a great deal of cooperation and has brought all agencies together. Tripartite meetings are scheduled bi-monthly and are supplemented by case specific meetings. Meetings develop cooperation, assess and develop agreed acceptance criteria for new cases, and review ongoing investigations where there is a shared investigative nexus. However, investigation case acceptance criteria are not considered by all parties to be clear and, where FIU cases have not been taken on in past, reasons and ‘remedial’ work required have not been recorded. This does not facilitate inter-agency working. Further, there is no formal process for conducting ‘lessons learned’ reviews. They are, however, undertaken on an ad hoc basis.”

The fact that the existence of Tripartite meetings, and details of how they operate, has already been publicly disclosed voluntarily by the agencies involved again gives reason to question the assertion that substantial prejudice would be caused by the disclosure of the Terms of Reference.

If prospective criminals are going to the searching out the Terms of Reference, before deciding or not (or how) to conduct crime in Jersey, then this suggests that they are already sophisticated criminals. As such, their level of sophistication is likely to be such that is implausible to believe that by reading the Terms of Reference, this would make a material difference to their ability to avoid successful investigation and/or prosecution in Jersey.

Rather than prejudicing the prevention, detection or investigation of crime, publishing the Terms of Reference is (if anything) more likely to assist with the prevention of crime in Jersey. Publicly demonstrating that Jersey has robust processes for investigating crime is more likely to act as a deterrent effect for sophisticated criminals, than prejudicing its prevention.

The Complainant is concerned that the SPA has applied Article 42 to the Terms of Reference on a blanket basis, rather than by considering the constituent parts of the Terms of Reference.

In considering the prejudice test under Article 42, the correct approach for the Internal Review Panel to take is to consider whether the constituent pieces of information contained within the Terms of Reference satisfy the prejudice test, rather than to consider the Terms of Reference as one single piece of information. In the case of Channel 4 v the Information Commissioner EA/2010/0134, (22 February 2011), the Tribunal stated that “…there is a clear distinction between a document and the information in it … a document may well contain many pieces of information some of which must be disclosed under the Act and others which need not be disclosed”.

Whilst that case was concerned with a different exemption, under the UK’s Freedom of Information Act, there is no reason why a similar approach should not be taken in Jersey when considering the application of Article 42. To the extent that it is determined that a part of the Terms of Reference is so sensitive that its disclosure would satisfy the prejudice test, then (subject to consideration of the public interest test, which might in any event weigh in favour disclosure) the proper approach for the SPA to take is to withhold (e.g. through redaction) only those specific pieces of information, with the rest of the Terms of Reference being disclosed.

If the prejudice test is not satisfied, then there is no need to consider the public interest test, as the Terms of Reference cannot be withheld on the basis of any part of Article 42 if the prejudice test is not satisfied.

If, contrary, to the Complainant’s submission, the Internal Review Panel considers that the prejudice test is satisfied, it must then go on to consider the public interest test. In considering the public interest, the Internal Review Panel should have at the forefront of their considerations that the principle behind the Law is to disclose information unless there is good reason not to.

The Complainant submits that the public interest in disclosure outweighs the public interest in withholding the Terms of Reference. It is important that the public is afforded the opportunity to scrutinise certain aspects of the work of the SOJP. In particular, it is in the public interest for the public to understand in what circumstances the SOJP is electing not to investigate alleged crime on the basis that the Attorney General will investigate such crime. This is especially so given that the Attorney General is also the Island’s prosecuting authority and therefore the public may have legitimate concerns about a lack of separation of powers.

If the Terms of Reference are kept hidden, the public is not able to properly scrutinise to what extent there is a proper separation between investigation and prosecution in Jersey. The public interest in the separation of powers is highlighted by the fact that this formed part of the manifesto of Reform Jersey, which called for the establishment of an independent prosecutor, not connected to a political role in government:

Separation of Powers (reformjersey.je)

In circumstances where the existence and work Tripartite Group has already been actively publicised (see above), in order (at least in part) to bolster Jersey’s international reputation for fighting crime, it is in the public interest for the public to be able to properly scrutinise the terms of reference of this group.

In citing factors in favour of withholding the Terms of Reference, the Response cites the fact that only the SOJP are a Scheduled Public Authority, and other parties involved are not. This is not a legitimate factor to take into account; alternatively, it should carry little weight. Public authorities frequently deal with other parties that are not scheduled public authorities; that does not mean that those documents cannot legitimately be the subject of a freedom of information request.

The Response cites the need to maintain confidentiality around “live investigations”. However, the Terms of Reference do not relate to any specific investigation; rather they are general terms of reference, which are not case-specific. The reference to “live investigations” is therefore a red herring.

The argument that “criminals might benefit from public disclosure of the document by adjusting their conduct accordingly” is entirely speculative and not credible. The fact that the SPA has sought to deploy such a weak argument serves only to illustrate that there are no strong factors favouring withholding the information.

Article 27(1)

In the Response, it is also indicated that Terms of Reference has have withheld on the basis of Article 27(1) of the Law.

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

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

Accordingly, Article 27 can only be relied on to withhold the Terms of Reference, if it can be reasonably determined that withholding the Terms of Reference is reasonably necessary to prevent a real possibility of an adverse effect on the national security of Jersey. The fact that the Terms of Reference may (as the Response assert) contain processes in relation to the tackling of serious financial crime including the financing of terrorism, is not by itself sufficient.

The Internal Review Panel is requested to carefully scrutinise the SPA’s unsupported assertion conclusion that there is a real possibility of an adverse effect on the national security of Jersey. It is the Complainant’s submission that the SPA’s assertion that there is a real possibility that disclosing the Terms of Reference will have an adverse effect on the national security of Jersey is simply not credible.

As with Article 42, in determining whether Article 27 has been properly applied to the information withheld, the correct approach is to consider the constituent pieces of information contained within Terms of Reference, rather than to consider the Terms of Reference as one single piece of information. See the case of Channel 4 v the Information Commissioner EA/2010/0134, (22 February 2011), referenced above.

Accordingly, to the extent that it is determined that a specific paragraph of the Terms of Reference is so sensitive that there is a real possibility of an adverse effect on the national security of Jersey if that paragraph is disclosed, and therefore it can be properly withheld on the basis of Article 27, then that information could be redacted, with the rest of the Terms of Reference disclosed.

Conclusion

For the reasons set out above, it is submitted that the requested information should not have been withheld. Alternatively, only part (and not the whole) of the information should have been withheld.

Accordingly, the Internal Review Panel is requested to disclose the requested information in whole or, alternatively (if the Internal Review Panel determines that the exemptions properly apply to some of the requested information), to withhold that information and disclose the remainder.

Internal Review Response

This internal review has been conducted by a senior member of staff within the States of Jersey Police, and who is independent of the original response.

The original response has been reviewed and assessed to establish whether the exemptions applied were done so appropriately, namely the application of Article 25(2) in respect of Question 3 of the original response, and Articles 27(1) and 42(a), (b), (c), (g) and (h) in respect of the request to release the Terms of Reference of the Tripartite Group.

1 The decision to withhold the names of the attendees

Regarding the decision to withhold the names of individual attendees of the meetings (Question 3), Article 9(1) of the Freedom of Information (Jersey) Law 2011 confirms that SPAs can refuse to disclose information that is absolutely exempt

Article 9 When a scheduled public authority may refuse to supply information it holds

(1) A scheduled public authority may refuse to supply information it holds and has been requested to supply if the information is absolutely exempt information.

Consideration needs to be given to whether disclosure would amount to a breach of data protection principles in accordance with the first principle of Article 8 of the Data Protection (Jersey) Law 2018 –

Article 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”)

In this respect, a previous JOIC decision notice 202-03-57259 of 14 November 2016 regarding the release of personal information for the individual attendees, suggests that where there is a risk to staff safety if names are disclosed, then redaction is likely to be justified under this exemption.

Decision notice final version 2 57259.pdf (jerseyoic.org)

Whilst Article 25 is an ‘absolute exemption’ from disclosure and therefore the ‘Public Interest Test does not need to be applied, previous JOIC decisions indicate that Scheduled Public Authorities should take into account any legitimate interests of the public when considering the disclosure of personal data. In this case the reviewer considered:

A The nature and sensitivity of the information at issue; and
B The nature of the public interest that disclosure of the information would serve.

The Complainant has argued that these individuals have no reasonable expectation of privacy given their public-facing roles and information regarding their names/roles being available in the press/LinkedIn. The Complainant also argued that there is public interest in the disclosure of these names as it would display how seriously the Tripartite Group meetings are taken by the various member organisations.

The 2020 National Risk Assessment: Money Laundering (8.131) states that the Tripartite Group members “comprise senior representatives” from the relevant organisations. This fact is already in the public domain and demonstrates that the member organisations have taken these Tripartite Group meetings very seriously. In addition, the reviewer concluded that just because an employee’s role is published on LinkedIn does not mean that it is the same individual who attends these meetings.

National Risk Assessment of Money Laundering 2020: Effectiveness of Domestic Cooperation.pdf (gov.je)

The independent reviewer considered the following:

Consideration in respect of whether it is lawful and fair to the attendees to disclose their names considered aspects that included:

I. Whether data subjects would expect to have their names published in connection with the Tripartite Group
II. Whether disclosure would likely also give rise to the risk of attempts to pressure or corrupt from bad actors directed at the data subjects or their family members.
III. The general expectation of privacy, including the effect of Article 8 of the European convention of Human Rights (ECHR). Article 8 protects the right to respect for private life, family life, home and correspondence.
IV. The nature and content of the information itself – whilst the information itself (names) is not controversial, the reviewer considered whether that changed when placed into the relevant factual context of the nature of the Group.
V. The circumstances in which the personal data was obtained was considered in that the Tripartite Group deals with serious and sensitive cases involving, but not limited to, terrorism and sanction-related matters. Furthermore, the Tripartite Group regularly considers sensitive intelligence regarding parties such as suspected state actors and politically exposed persons. Often these persons would be expected to have considerable access to cyber capabilities. The request was trying to establish an attendance record for these highly sensitive meetings.
VI. Established custom or practice within the SPA in terms of releasing names of meeting attendees.
VII. Whether the individual consented to their personal data being disclosed or, conversely, whether they explicitly refused.
VIII. The consequences of disclosure (if it would cause any unnecessary or unjustified damage or distress to the individual concerned) was considered.

Balancing the public interests between the rights and freedoms of the data subject and the legitimate interests of the public

Establishing what is in the public interest.

Clarifying the meaning of the term ‘public interest’ is informed following the stated position of the JOIC in a Decision Notice dated 21 November 2018 in a case between the Bailiwick Express and the Chief Minister’s Department:

‘It does not refer to interest in the sense of being entertaining. The term public interest concerns the public having a stake or right that is at issue rather than simply mere curiosity. This term applies in circumstances where an event or development is likely to affect tangibly the public in general’.

In respect of whether the data subjects would expect to have their names published in connection with the Tripartite Group, the independent reviewer found that there was no assumption at the inception of the group that members’ personal information would be made public.

The independent reviewer has considered whether, in releasing the names of individual attendees, this would likely lead to them being exposed to increased personal security concerns, cyber security concerns and be at an increased risk of being unduly influenced, bearing in mind security breaches caused by state actors in recent years and the sensitivity of the investigations typically handled by the Tripartite Group.

The independent reviewer finds that the disclosure of the names of attendees would likely risk putting an attendees’ private life and/or family and friends at risk from bad actors.

Additionally, the independent reviewer concluded that it would be unfair and not in the public interest to disclose the names, thereby concluding that disclosure would breach the lawfulness, fairness and transparency principle.

The reviewer also determined that, in respect of customs within the SPA pertaining to the release of individuals’ names, the release of names at or above any particular rank or management level was not deemed to be the most important consideration. The most important consideration was the fact that the group work together. It was also concluded that the decision as to whether a person is routinely public facing is not the most important consideration. The most important consideration was felt to be the nature of the meeting or group the data subject is attending or involved with and the security considerations surrounding that specific group or meeting.

Given the highly sensitive nature of the work of the Tripartite Group, the independent reviewer considers it foreseeable that releasing the names of the attendees could place the attendees at risk of harm or as increased targets for corruption. Also, that disclosure may have a material negative impact on future multi-agency meetings as attendees may be reluctant to attend in the knowledge that their details could be released.

There was no consent from any member of the group to have their personal data disclosed.

Conclusion

The independent reviewer concludes that the complainant’s points in this respect are not upheld and considers Article 25 (2) has been correctly applied in this case.

2 The decision to withhold the Terms of Reference

The reviewer finds that the concerns discussed above in respect of names also applies equally to the Terms of Reference.

The independent reviewer considered the following:

In respect of the application of Article 27 – National security

Application of Article 27 is an absolute exemption, linked to Article 26A. The Tripartite Group is a body that deals with security matters that have the potential to affect national security.

In respect of the application of Article 42 – Law enforcement

The complainant states that ‘Rather than prejudicing the prevention, detection or investigation of crime, publishing the Terms of Reference is (if anything) more likely to assist with the prevention of crime in Jersey. Publicly demonstrating that Jersey has robust processes for investigating crime is more likely to act as a deterrent effect for sophisticated criminals, than prejudicing its prevention’.

The reviewer concurs that there must be a balance in avoiding prejudice to the prevention or detection or investigation of crime against the public interest in the openness and transparency of the SPA and the requester’s arguments regarding disclosure. To that effect the reviewer considered the following:

I. Whether the information is already in the public domain.
II. Whether there had been public interest in the Tripartite Group, The Terms of Reference of the Tripartite Group and whether there has been a full picture given to the members of the public about law enforcement relating to subjects such as money laundering and the funding of terrorist activities, but which affect national security;
III. Whether the age of the information renders it obsolete and therefore suitable for disclosure.

The reviewer determined that generic parts of the Terms of Reference were indeed referred to in the Moneyval report, and in this respect Article 23(1) ‘Information accessible to applicant by other means’ ordinarily would have been considered. However, at the time of the initial request, the Moneyval report had not yet been published and this option was not available.

They also determined that there was no substantial interest in this particular tripartite arrangement above others that are in force to jointly combat money laundering, financial irregularities or that that could affect national security.

The reviewer determined that the data was not too old to deem it no longer relevant to current issues.

The reviewer finds the requester’s assertion that to reveal the Terms of Reference would be more likely to assist in the prevention of crime in Jersey unlikely but concurs with the requester’s assertion that each portion of the document itself as opposed to the document in its entirety ought to be considered.

When considering this the reviewer finds as follows:

1 That the parts of the Terms of Reference consisting of personal information should be exempt from release and therefore Article 25(2) applies,
2 That the information relating to the generic parts of the document have been adequately covered in the Moneyval 2004report and that Article 23 now applies
Moneyval 2004 (coe.int)
3 That the remaining operational and tactical information has been correctly withheld under the absolute exemption Article 27.

Whilst the complainant’s points relating to the separation of powers are noted, the independent reviewer finds that they are not pertinent to the decision as to whether the SPA correctly applied the various articles justifying the withholding of the Terms of Reference.

The independent reviewer therefore finds, for the above reasons, that the original decision to withhold the names of the attendees and the Terms of Reference was appropriate.

Article added

Article 23 - Information accessible to applicant by other means

(1) Information is absolutely exempt information if it is reasonably available to the applicant, otherwise than under this Law, whether or not free of charge.

(2) A scheduled public authority that refuses an application for information on this ground must make reasonable efforts to inform the applicant where the applicant may obtain the information.