States of Jersey Complaints Board: findings – complaint against a decision of the Chief Minister regarding a request for

STATES OF JERSEY

STATES OF JERSEY COMPLAINTS BOARD: FINDINGS –

COMPLAINT AGAINST A DECISION OF THE CHIEF MINISTER REGARDING A REQUEST FOR ACCESS TO INFORMATION MADE UNDER THE CODE OF PRACTICE ON PUBLIC ACCESS TO OFFICIAL INFORMATION

Presented to the States on 14th October 2009 by the Privileges and Procedures Committee

STATES GREFFE

2009   Price code: B  R.115

REPORT

Foreword

In accordance with Article 9(9) of the Administrative Decisions (Review) (Jersey) Law 1982 as amended, the Privileges and Procedures Committee presents the findings of the Complaints Board constituted under the above Law to consider a complaint against the Chief Minister regarding a request for access to information made under the Code of Practice on Public Access to Official Information.

Connétable J. Gallichan of St. Mary ,

Chairman, Privileges and Procedures Committee.

STATES OF JERSEY COMPLAINTS BOARD 16th September 2009

Findings of the Complaints Board constituted under

the Administrative Decisions (Review) (Jersey) Law 1982 to consider a complaint by Mr. Graham Power against the Chief Minister regarding the refusal to provide information under the Code of Practice on Public Access to Official Information

Hearing constituted under the Administrative Decisions (Review) (Jersey) Law 1982

1. Present -

Board Members

Advocate R.J. Renouf , Chairman Mr. N.P.E. Le Gresley

Ms. C. Vibert

Complainant

Mr. G. Power

Connétable A.S. Crowcroft of St. Helier Chief Minister

Senator T.A. Le Sueur , Chief Minister

Mr.  M.J.  Pinel,  Head  of  Employee  Relations,  Human  Resources Department

Miss. S. Roberts, Legal Adviser, Law Officers' Department

States Greffe

Mr. M.N. de la Haye, Greffier of the States

The hearing was held in public at 3.30 p.m. on 16th September 2009 in the Blampied Room, States Building.

2. Summary of the dispute.

2.1  The  Board  was  convened  to  hear  a  complaint  by  Mr.  Graham  Power  in relation  to  a  refusal  by  the  Chief  Minister  to  provide  to  him  certain information he was seeking under the provisions of the Code of Practice on Public Access to Official Information.

3. Chairman's introduction

1. The  Chairman,  Advocate  Richard   Renouf ,  welcomed  the  parties  and  the members of the public who were present at the hearing. He pointed out that the Complaints Board was named as the appeal body under Part IV of the

Code of Practice on Public Access to Official Information. The Chairman explained the scope of the powers of the Complaints Board as set out in the Administrative  Decisions  (Review)  (Jersey)  Law  1982  and,  in  particular, clarified that the Board was restricted to requesting a Minister to reconsider a decision as opposed to a court which could, in certain circumstances, overturn a ministerial decision.

2. The Chairman reminded the parties that the hearing was related to the single issue of the information that Mr. Power was seeking and made it clear that it would not be allowed to stray into other matters relating to Mr. Power's suspension as Chief Officer of the States of Jersey Police.
3. The Chairman stated that the Board was grateful for the very comprehensive written submissions that both parties had provided in advance of the hearing and suggested that the oral submissions should be restricted to amplifying and drawing  attention  to  particular  matters  of  importance  in  the  written submission.
   4. Summary of the Complainant's case.

1. Mr. Power explained that he was accompanied by the Connétable of St. Helier but would present his case himself. He explained that his application was made under the appeal mechanism set out in Part IV of the Code of Practice on  Public  Access  to  Official  Information  that  the  Chairman  had  already referred to which stated that any person who was aggrieved by a decision of a Department or Minister to provide information could appeal to the Complaints Board.
2. Mr. Power's complaint related to 3 documents which were created as part of a process which was purported to have been conducted under the Disciplinary Code for the Chief Officer of the States of Jersey Police. The 3 documents relevant to the complaint were as follows –

1. A letter from the then Minister of Home Affairs, Deputy Andrew Lewis , to the Chief Executive, Mr W.D. Ogley, under paragraph 2.1.1 of  the  Disciplinary  Code  notifying  the  Chief  Executive  that  the Minister had decided to invoke the Disciplinary Code and asking for a preliminary investigation. This was provided to Mr. Power by post two days after his suspension from the post of Chief Officer of the States of Jersey Police.
2. A  letter  from  the  then  Minister  for  Home  Affairs  to  Mr.  Power notifying him that the disciplinary process had been commenced, to which was attached a copy of 2 versions of the Disciplinary Code, one referring to committee government and one updated to change the relevant  references  to  refer  to  ministerial  government.  This  was provided to Mr. Power during the suspension meeting; and
3. A letter from the Minister to Mr. Power notifying him that he had been suspended from duty. This was provided to Mr. Power during the suspension meeting.

3. Mr. Power explained that the information he was seeking was quite simple. On 17th November 2008 he had written to the Chief Executive seeking details of the date and time that the 3 letters were created. He believed that this information would be available on the States IT system and could easily be provided by the Head of the Information Services Department.
4. Mr. Power stated that under the Code of Practice on Public Access to Official Information  there  was  a  presumption  of  openness  and  any  applicant  was therefore entitled to receive information he or she requested unless the public authority  could  show  a  legitimate  reason  why  it  should  be  withheld  in accordance with the exemptions in the Code. Mr. Power explained that an applicant for information under the Code was under no obligation to provide any reasons why he wanted particular information but, in order to assist the Board and in the interests of transparency, he set out certain background information.
5. Mr. Power explained that in the 3 letters the then Minister for Home Affairs had claimed that his concerns arose because of a letter he had received from the Chief Executive, with which was enclosed a letter from the Deputy Chief Officer Mr David Warcup. The Minister stated that he received these letters on 11th November 2008.' The correspondence referred to the findings of a review of the historic abuse investigation by the Metropolitan Police. A copy of the letter from the Deputy Chief Officer to the Chief Executive had been disclosed to him and was dated 10th November 2008.
6. Mr.  Power  explained  that  additionally,  in  what  was  claimed  by  the  then Minister and the Chief Executive to be an account of the suspension meeting on 12th November 2008, the first paragraph recorded that he had been told that concerns had arisen following a briefing on the previous evening' and following the receipt of the letter from the Deputy Chief Officer dated 10th November  2008.  This  assertion  by  the  then  Minister  and  Mr.  Ogley  was subsequently confirmed in witness statements that both had given to Wiltshire Police who were conducting the Preliminary Investigation' required by the Disciplinary Code. Extracts from these statements were made available to the Board and confirmed that the decision to suspend Mr. Power was said to have been taken by the then Minister as a consequence of a letter from the Chief Executive on 11th November 2008, which enclosed the letter from the Deputy Chief Officer dated 10th November 2008 as well as information given at a briefing on the evening of 11th November 2008.
7. Mr. Power considered that it was legitimate to question the validity of the accounts of when relevant decisions were taken and the order in which they were taken. The reasons included-

1. The  fact  that  the  3  letters  relating  to  discipline  and  suspension appeared detailed and legalistic in their tone. Mr. Power believed that they  would  have  been  hard  to  produce  in  the  few  working  hours between the presentation on the evening of the 11th November 2008 and the time of the suspension meeting at 11.10 a.m. on the following day;

2. A revised version of the Disciplinary Code changing references from Committee' to Minister' appeared to have created during the same time period;
3. Both Mr Ogley and the then Minister claimed in their statements that the decisions to commence the disciplinary process and to suspend Mr. Power from duty arose from information received on the 11th November but both referred only to the creation of the letter notifying him that disciplinary proceedings had commenced. They both said that this was done after information was received on 11th. They were silent in respect of the other two letters.
4. The letter from the then Minister to the Chief Executive should, if the process had been followed correctly, have been the first in the series of three documents, and a copy provided to Mr. Power although his copy had only been provided by post two days after the suspension and then only after it had been requested in a letter from him which was hand-delivered on 13th November 2008;
5. The suspension letter, which was handed to Mr. Power during the meeting on the morning of 12th November 2008, made reference to our meeting earlier today' even though it was agreed by all parties that no earlier meeting took place;
6. In  spite  of  repeated  requests  made  over  a  period  of  9  months, Ministers had persistently refused to provide details of the times and dates on which these 3 documents were created. Mr. Power claimed that it was almost beyond belief that they would persist with their refusal to this extent if they had nothing to hide;
7. The former Minister for Home Affairs and the former Chief Minister had  made  general  public  statements  to  the  effect  that  the  proper process  had  been  followed  at  all  times,  but  they  had  offered  no explanations for the apparent inconsistencies in the documents.

8. Mr. Power stated that the information he was seeking about the time and date of the creation of the 3 documents was important to him for a number of reasons. Ministers and senior civil servants had claimed that evidence had been viewed first and the decision taken to suspend him taken afterwards in the light of that evidence. That process was very different to an alternative sequence of events where a decision to suspend might have been taken first and the evidence to justify that decision assembled subsequently to justify the decision. If it transpired that the version of events put forward by the Minister and Chief Executive was not correct this would have implications for the credibility of key witnesses in any future disciplinary process. Mr. Power expressed the view that if a person was willing to lie about one matter that person might equally be prepared to lie in another context.
9. Mr. Power reiterated that his request was a simple one. For over 9 months he had been seeking details of the time and date on which the 3 documents dated 12th November 2008 had been created. This request had first been made by

him on 17th November 2008 and repeated in a variety of ways since that time without success.

10. Mr.  Power  stated  that  he had  noted  from  the  Chief  Minister's  written submission that it might be claimed that the information he was seeking was not information' for the purpose of the Code of Practice on Public Access to Official Information and that the information did not exist. In response to these  assertions  he  set  out  his  view  that  the  Code  of  Practice  defined information' as any information or official record held by an authority' and in his submission this clearly covered data held electronically on the States IT system. If this was not the case it would take out of the scope of the Code of Practice the majority of government information and it was inconceivable that was the intention of the States in introducing the Code. Mr. Power referred the Board  to  an  extract  from  Collins  English  Dictionary  which  defined Information' as 1. Knowledge acquired in any manner; facts 2. Computers a the meaning given to data by the way it is interpreted. b same as data (sense 2.)'  He  pointed  out  that  Data.'  was  defined  as  1.  A  series  of observations, measurements, or facts; information. 2. Computers, the numbers, digits,  characters,  and  symbols  operated  on  by  a  computer.'  Mr.  Power asserted that if the view offered by the Chief Minister were to be accepted this would have significant implications for the scope of the Code in an era when the majority of information held by authorities is in electronic form.
11. Although the Chief Minister had claimed that the information did not exist in the  format  that  Mr.  Power  had  requested  it,  Mr.  Power  clarified  that  the reference to a signed statement from the Head of the IS Department was simply a suggested means to provide the information and the information' itself requested referred simply to the times and dates which he believed would be held on the States network.
12. Mr.  Power  addressed  the  second  reason  set  out  in  the  Minister's  written submission  for  withholding  the  information,  namely  that  to  do  so  might infringe legal professional privilege or lead to the disclosure of legal advice to an authority' and was therefore exempt from disclosure under the Code. Mr. Power made it clear that he was not asking for access to any legal advice that the Minister may have obtained and he was only interested in knowing when the 3 letters were first created. Mr. Power did not believe it could be appropriate to suggest that, if legal advice was taken at any stage in a process, all subsequent decisions could be caught by the legal privilege exemption in the Code of Practice.
13. Mr. Power concluded his presentation to the Board by referring to public interest considerations. He considered that the fact that the Minister might have  received  legal  advice  before  taking  the  decision  to  suspend  him undermined the credibility of the official account of events. If the official account was correct this legal advice would have had to have been given in the period between the presentation on the evening of 11th November and the meeting on the morning of 12th and this added to the implausibility of the official sequence of events put forward. Mr. Power stated that if Ministers, assisted by civil servants, had put together a false account of events and produced paperwork and made statements to support that false account, there was, in his submission, an issue of public interest. He reiterated that the Code

of Practice as based on a presumption of openness with the stated purpose of increasing public access to information' and he invited the Board to support his view that the information he was seeking should be provided to him.

5. Summary of the Chief Minister's case.

1. Miss Sylvia Roberts, Legal Adviser, Law Officers' Department, informed the Board that she was presenting the Chief Minister's submission and addressed the Board on his behalf.
2. Miss Roberts explained to the Board that the Chief Minister's position was –

1. that the Code of Practice on Public Access to Official Information did not require a Minister to create information in order to deal with a request  as,  in  the  Chief  Minister's  view,  the  Code  required  the disclosure of information already in existence (unless the information requested fell within one of the exemptions);
2. the  information  which  Mr.  Power  was  seeking  was  exempt  from disclosure under paragraph 3.2.1(a)(v) on the grounds that disclosure of  the  information  would  or  might  be  liable  to  infringe  legal professional privilege or lead to the disclosure of legal advice to an authority'.

3. Miss Roberts addressed firstly the definition of information' for the purposes of  the  Code  of  Practice  in  the  context  of  Mr.  Power's  application.  She reminded  the  Board  that  paragraph  1.2.1(b)  of  the  Code  stated  that information' means any information or official record held by an authority'. She pointed out that there was no further definition of information' under the Code.
4. Miss Roberts asserted that the information which Mr. Power was seeking did not exist as there was currently no statement or document in existence which set out the dates and times on which the 3 letters were created. She submitted that the purpose of the Code of Practice was to require the disclosure of information which already existed, such as records of decisions, policies or procedures and that the Code did not require the person asked for disclosure to research answers to questions. The Code of Practice did not, in Miss Roberts' submission, require a Minister to make enquiries on behalf of an individual and thereby construct information which did not already exist in order to provide a response.
5. The present case could, in her submission, be contrasted with a request to know the names of the attendees at a meeting where the relevant information could be cut and pasted from the minutes of the meeting. Miss Roberts further pointed  out  that  paragraph  1.2.4  of  the  Code  stated  that  it  applied  to information created after the date on which the Code is brought into operation and, in the case of personal information, to information created before that date'  .  Paragraph  1.2.1  referred  to  information  held'  by  an  authority, suggesting that information must already exist, whereas the information that Mr. Power was seeking did not already exist and would have to be created in order to deal with his request.

6. Miss Roberts addressed secondly the issue of exemptions under the Code. She submitted that, even if the Board considered that the Code of Practice did apply  to  Mr.  Power's  request,  the  Chief  Minister's  view  was  that  it  was exempt from disclosure under the exemptions listed in the Code. The Chief Minister had declined to supply the information requested as he considered that it was exempt under paragraph 3.2.1(a)(v) of the Code which stated –

3.2  Exemptions

3.2.1  Information shall be exempt from disclosure, if –

(a)  such disclosure would, or might be liable to –

()

(v)  infringe legal professional privilege or lead to the disclosure of  legal  advice  to  an  authority,  or  infringe  medical confidentiality;'

7. Miss Roberts pointed out that paragraph 3.2.1 stated that information shall be exempt  from  disclosure  if  such  disclosure  would  or  might  be  liable  to' infringe legal professional privilege. The Chief Minister's assertion was that disclosure of the information requested would, or might be liable, to infringe legal professional privilege or lead to the disclosure of legal advice. Legal professional privilege' was not defined in the Code or in statute and it had evolved over time through case law. It was intended to provide confidentiality between professional legal advisers and clients to ensure openness between them. It was submitted that privilege attached not only to the advice itself but also to the fact that advice had been sought and when that advice was sought. Miss Roberts pointed out that the Code of Practice for Scrutiny Panels and the PAC  approved  by  the  States  in  2008  contained  provisions  on  the confidentiality of legal advice received by Ministers. The privilege had always been regarded as an important one as it was essential that there should be no inhibition in place to stop anyone seeking legal advice. Once privilege was waived, whether intentionally or inadvertently, it could not be relied on at a later stage.
8. In response to questions from the Board concerning why the mere fact of disclosing the date and time of the creation of the documents would breach legal  professional  privilege  Miss  Roberts  stated  that  in  the  particular circumstances  of  this  case  the  disclosure  of  the  information  would  lead Mr. Power to know whether or not legal advice had been given.
9. Miss  Roberts  drew  the  Board's  attention  to  the  provisions  of  the  United Kingdom Freedom of Information Act 2000 which stated at Section 42 that information in respect of which a claim to legal professional privilege could be maintained in legal proceedings was exempt information. The exemption under the 2000 Act was a qualified one subject to the public interest test although Miss Roberts pointed out that no such test applied under the Jersey Code  of  Practice  on  Public  Access  to Official  Information.  Miss  Roberts referred to advice published by the UK Information Commissioner on the

application of the legal professional privilege exemption which made it clear that there would need to be a strong public interest in disclosure to offset the inevitable strong public interest in favour of exemption, particularly if the advice was recent or current. In Miss Roberts' submission the Chief Minister would not, as a result, have been required to disclose the information even if a Freedom of Information Law similar to the UK Act had applied in Jersey.

10. In summary Miss Roberts invited the Board to agree that the information that Mr. Power was seeking was not information' for the purposes of the Code of Practice as it did not already exist. Nevertheless, even if the Board considered that the information was covered by the Code, she submitted that it was exempt from disclosure under exemption 3.2.1(a)(v).

6. Board findings

1. The Board notes that both parties accept that the Code of Practice on Public Access to Official Information creates a presumption of openness in relation to official information and the Board concurs with that view. As a result it is clearly  incumbent  on  the  Chief  Minister  to  justify  why  he  is  refusing  to disclose the information that Mr. Power is seeking and it is not for Mr. Power to justify why he has requested it. Although Mr. Power gave the Board some reasons  for  seeking  the  information  these  have  not  been  material  to  the Board's consideration of the matter
2. The Board, having considered the submissions  made by Miss Roberts on behalf of the Chief Minister, rejects the argument that the information that Mr. Power is seeking cannot be considered as information' for the purposes of the Code. The Board notes that the Code of Practice defines information' as any information or official record held by an authority' and the Board believes it is unreasonable to suggest that data held on the States IT network is not information' for the purposes of the Code. The Board believes that the Chief Minister has confused reference to the means' by which the information which could be provided to Mr. Power with the information itself. The Board believes that the information requested should be held as data on the States IT network or could be found in paper records. The Board considers that Mr. Power was possibly over-prescriptive in referring to the need for a signed statement from the Head of the IS Department but it is clear that there are a variety of other means by which the information, which consists simply of 3 times and dates, could be provided.
3. It must be the case that there are many requests for official information made to  States  departments  that  require  the  collation  of  information  and  the production of a document or schedule as a means to transmit that information to  the  applicant.  The  Code  appears  to  allude  to  this  possibility  as paragraph 2.1.1(f)  allows  an  authority  to  make  a  charge  where  a  request would require extensive searches of records'. At the hearing the Chairman gave as an example the recent well-publicised request by the Jersey Evening Post for information made under the Code of Practice about the expenses of chief officers. The Board considers it is almost certain that, in that case, there was no single pre-existing document that contained the information requested and an officer or officers in the States Treasury or another department had to examine electronic financial records to extract the information requested and

then collate a schedule for the journalist concerned. The Board considers that a request under the Code cannot be refused merely because some research is required to collate the information requested and then record it in a form suitable for release to an applicant.

4. Having concluded that the information sought falls under the Code and that it was unreasonable for the Chief Minister to consider that it did not, the Board went on to consider whether the decision that the information was covered by the  legal  professional  privilege  exemption  could  have  been  made  by  a reasonable  body  of  persons  after  proper  consideration  of  all  the  facts' (Article 9(2)(d) of the Administrative Decisions (Review) (Jersey) Law 1982).
5. In considering this issue the Board has been careful to remember that it is not a  court  of  law  and  cannot  adjudicate  on  purely  legal  issues.  In  addition, notwithstanding the fact that the Chairman and one member of the Board are qualified Jersey lawyers, the Board's role is not to consider the matter from a perspective of legal interpretation.
6. The Board accepts the view expressed by Miss Roberts that the principle of legal  professional  privilege  is  an  extremely  important  one  that  should  be respected and protected to ensure confidentiality between a client and his or her legal adviser. The Board notes that the States have recognised in the Code of Practice for Scrutiny Panels and the PAC referred to by Miss Roberts that even the mere fact that a Minister has taken legal advice should not normally be disclosed.
7. Although the Board recognises that legal professional privilege is an important concept it has struggled to understand how the Chief Minister can claim that the mere disclosure of the 3 dates and times requested by Mr. Power would breach that privilege. Mr. Power has made it very clear that he is merely seeking information on the sequence of events and that he is not seeking access to any legal advice the Minister might have received and is not even seeking to discover whether or not the Minister sought legal advice.
8. Having considered the facts presented and the submissions made to it, the Board was not convinced how the  mere giving of the 3 times and dates requested would automatically allow Mr. Power to know whether or not legal advice was sought and given and thereby breach legal professional privilege. Mr. Power is not seeking to discover who created the letters, who had input into any successive drafts there may have been or on whose computer they were created. The information he is seeking consists simply of 3 times and 3 dates. The then Minister for Home Affairs might have sought advice from a range of sources before taking his decision to suspend Mr. Power and no material  was  presented  to the  Board  to  show  how,  in  the  particular circumstances of this case', as submitted by Miss Roberts, disclosure of the 3 times and dates would automatically lead him to know that legal advice had been sought.
9. The Board was concerned by the verbal submission made on behalf of the Chief  Minister  that  disclosure  of  the  information  sought  would  almost certainly lead to further requests for information from Mr. Power. The Board's view is that every request for information made under the Code must be

considered on its individual merits and the fact that future requests might legitimately be covered by exemptions in the Code cannot be used as a reason for refusing an initial request unless an exemption applies. It cannot be known whether or not Mr. Power would wish to make further requests for information if he received the 3 dates and times he is seeking and this matter is simply not relevant for the purposes of the present application as any future requests would need to be considered on their own merits. If the Chief Minister took account  of  this  when  taking  his  decision  on  this  particular  request  for information the Board considers he was unreasonable to do so.

10. In considering whether or not the Chief Minister was reasonable in stating that disclosure of the information would breach legal professional privilege the Board also noted the contents of 2 letters provided to it as part of the Chief Minister's submission. In a letter to Mr. Power from the then Director of Human Resources dated 5th February 2009 the Director wrote It seems to me that the information you seek (as set out in points 1-11 of your letter of 11th December 2008 addressed to the Minister for Home Affairs) in fact amounts, for  the  most  part,  to  questions  you  will  wish  to  put  to  witnesses  at  any disciplinary hearing which might follow the current investigation, rather than to a request for information as envisaged by the Code'. In a letter to the Greffier of the States from the Chief Minister about this application dated 29th June 2009 this point was reiterated even more clearly in the following terms The information Mr. Power seeks could, however, be elicited by questions he can put to a witness at any disciplinary hearing which might take place'. The Board notes that at no point in either of these letters was it claimed that the information would be covered by legal professional privilege although it noted that Miss Roberts submitted that the fact that Mr. Power had been told that he could seek the information at a disciplinary hearing did not necessarily mean that it would be disclosed at any such hearing.
11. Having considered the terms of the Code of Practice on Public Access to Official Information as approved by the States the Board does not consider it was  appropriate  for  Mr.  Power  to  be  notified  that  he  could  elicit  the information at a subsequent hearing rather than applying under the Code. The Code allows a person to apply for information and there is a presumption of openness unless one of the exemptions applies. Furthermore, as Mr. Power pointed out to the Board, any future disciplinary hearing may not cover the process of the initial suspension and the opportunity to elicit the information at that hearing may not even exist.
12. The  Board  is firstly  satisfied  that  the  information  requested  exists  and  is information' for the purposes of the Code and secondly that none of the exemptions can legitimately apply to it and the Chief Minister cannot as a result rebut the presumption of openness. The Board therefore concludes, in accordance  with Article  9(2)(d) of the Administrative Decisions (Review) (Jersey) Law 1982 that the decision of the Chief Minister could not have been made by a reasonable body of persons after proper consideration of all the facts'. In accordance with the Law the Board therefore requests the Chief Minister to reconsider his decision and report back to the Board within one month. In reconsidering his decision the Board urges the Chief Minister to consider carefully how disclosing 3 times and dates, and nothing else, could

possibly disclose whether any legal advice was sought or given and thereby breach legal professional privilege.

Signed and dated by:  .....................................................................................

Advocate R.J. Renouf , Chairman

.....................................................................................

Mr. N.P.E. Le Gresley

.....................................................................................

Ms. C. Vibert