Code of Practice on Public Access to Official Information - measures to improve implementation

STATES OF JERSEY

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CODE OF PRACTICE ON PUBLIC ACCESS TO OFFICIAL INFORMATION: MEASURES TO IMPROVE IMPLEMENTATION

Lodged au Greffe on 27th April 2004

by the Privileges and Procedures Committee

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to r ef er to their Act dated 26th July 1999 in which they adopted a Code of Practice on Public Access to

Official information, and –

(a ) c o mmencing three months after adoption by the States, to amend the Code of Practice on Public

Access to Official Information as follows –

(i ) i n P a rt  II, paragraph  2.1, after sub-paragraph  (k) add the following sub-paragraph –

" ( l) u n d er t a k e t he drafting of Committee and sub-committee agendas, agenda support papers and minutes so as to allow maximum disclosure;

(i i) i n P a rt II, insert a new paragraph 2.1.2 as follows –

" 2 .1 . 2 A n a u th o r it y shall –

(a ) fo r ward to the States Greffe the names of strategic and/or policy reports

prepared by the authority after the date of adoption of this amendment, to be added to a central list to be called the Information Asset Register (the Register');

  (b ) n o t w i th s t a n ding paragraph 2.1.2 (a), the name of any report deemed to be

of public interest shall be included on the Register;

(c ) w h e r e the cost of third party reports or consultancy documents, which have

been prepared for the authority or which are under preparation, exceeds an amount fixed from time to time by the Privileges and Procedures Committee, an authority shall forward to the States Greffe the names of such reports to be added to the Register, together with details of the cost of preparation and details of their status;

( d ) s u bject to the exemptions of the Code, make available to the public all

unpublished third party reports or consultancy documents after a period of five years."

(i ii ) i n P a rt III, paragraph 3.1, after the number1.2.3' add the words and 2.1(k) and (l)'; (i v ) I n P a rt III, for paragraph 3.1(a) substitute the following paragraph–

" (a ) a n a u th o r i ty shall grant access to all information in its possession, and Committees of the States, and their sub-committees, shall make available before each meeting their agendas, and supplementary agendas, and grant access to all supporting papers, ensuring as far as possible that agenda support papers are prepared in a form which excludes exempt information, and shall make available the minutes of their meetings,";

(b ) to request the Greffier of the States to take the necessary steps to ensure that all matters recorded

in Part  B of the minutes are properly exempt from disclosure in accordance with the provisions of the Code.

PRIVILEGES AND PROCEDURES COMMITTEE

REPORT

Background

The Code of Practice on Public Access to Official Information was adopted, as amended, on 26th July 1999 and introduced on 20th January 2000. The purpose of the Code was to allow access, wherever reasonably possible, to information held by the States, Committees and departments of the States. The draft Code was the subject of amendment during the debate, and an amended Code was published after the conclusion of the debate.

The Code established a minimum standard, and Committees, in accordance with States' policy, are bound to meet those standards. Access to information occurs at several levels. Firstly, by application to a department for general, specific or personal information (regarding the applicant) that it holds. Secondly, the public is able to gain access to Committee agendas. Thirdly, the public may access Committee minutes to establish what decisions have been made.

The States, as part of the above decision, also agreed "that the provisions of the Code, amended as appropriate in the light of practical experience, should be incorporated into legislation which would establish a general right of access to official information for members of the public, and charged the House Committee to take the necessary steps to enable the legislation to be assessed for priority for inclusion in the States legislation programme".

The functions of the House Committee were transferred to the Privileges and Procedures Committee which has the following term of reference in relation to public access to official information –

to re v iew and keep under review the Code of Practice on Public Access to Official Information adopted by

the States on 20th July 1999 and, if necessary, bring forward proposals to the States for amendments to the Code including, if appropriate the introduction of legislation, taking into account the new system of government.

The Privileges and Procedures Committee, having regard to other developments relating to the holding of information, established a Working Party with the following terms of reference –

to re v iew the Code of Practice on Public Access to official information, the existing and proposed Official

Secrets and Data Protection legislation, the Public Records (Jersey) Law 2002, and the existing arrangements for access to official information by members of the States and to make such recommendations for change including legislative change to any of the foregoing as the Working Party may think fit.

As a first stage, the Working Party reviewed the implementation of the Code of Practice, and recommended improvements pending an integrated review of the above legislation and the drafting of a law on public access to official information. The Freedom of Information Law has been accorded law drafting time in 2004, and the Working Party is considering a law drafting brief in response to this allocation.

Additional information may be found about access to information in the Freedom of Information Consultation Paper (R.C.15/2003) presented to the States on 25th March 2003 by the Privileges and Procedures Committee, and in the projet Public Access to Official Information: Code of Practice' (P.183/99) which was not debated (and later superseded), but contains relevant information. The Committee has also commented on the proposition of Deputy Alan Breckon of St. Saviour,"Public Right of Access to Information, Financial and other records of the States of Jersey" (P.34/2003 lodged au Greffe' on 1st April 2003).

Progress

Guidelines were introduced for departments to follow in relation to the direct release of information to the public as a result of an application. These guidelines were circulated to departments and retained on the intranet. These applications have been monitored, initially 6-monthly, and now annually, to establish the use made of the Code in this way. Monitoring was introduced to review how the Code was being applied at the level of public access to information held in departments. Successive annual reports have shown that uptake has been generally low, with few instances of dissatisfaction being reported and virtually no use of the appeals procedure being made.

The situation relating to the preparation and publication of Committee agendas and minutes is less satisfactory. It may be helpful to reflect that the House Committee of the day decided that it would be inappropriate to be prescriptive about the implementation of the Code and decided that this should be left to the discretion of individual Committees. Therefore the decision as to whether an item is placed on the A or B agenda currently rests with each Committee President. This has lead to an inconsistent system across Committees and in some cases it has been far from clear as to why some items have been classified as exempt from disclosure.

Discussion

In formulating this proposition and during discussion, the Committee considered the following matters –

1. D  u ring the original debate, SenatorStuartSyvretproposedanamendment that –

" C o m mittees of the States shall grant access to – (i ) t h ei r agendas;

(i i) su p port papers;

(i ii ) m i nutes."

T h e States adopted the proposal that agendas and minutes shall be made available, but not the proposal

that agenda support papers shall be made available. The word shall' confers an obligation to release, and the States rejected the proposal that this obligation should exist in relation to agenda support papers. When the Code was re-drafted to include amendments adopted, this decision was interpreted as follows –

" 3 .1 Access

S u b je ct to paragraph 1.2.3 and the exemptions described in paragraph 3.2 –

(a )   a n authority shall grant access to all information in its possession, except that Committees of the

States, and their sub-committees, shall grant access to the agendas and minutes of their meetings, but not to agenda support papers;"

It w  o uld appear that some have interpreted this article to mean that the States considered that Committees

shall not' make agenda support papers available, however, there is nothing to prevent Committees from releasing agenda support papers if they do not contain exempt material.

2. A u thorities are obliged, under Article 2.1(k), to undertake the drafting of documents so as to allow maximumdisclosure. In order to comply with this obligation, papers would have to be restructured so as to contain exemptmaterialin one part or certain exempt parts would have to bemasked.Currently Committeeshavetended to prefer not to releaseagenda support papers rather than restructurethem.
3. E v e ryCommittee decides how its ownagendaitems are classifiedbutwhen a Part B minute is receivedby other Committees this classification is often respected. In some cases, the recipient Committee has been at a loss to see whycertain matters have been considered to be exemptat all, but has felt obliged to honour the classification given.
4. T h e re has been a tendencyto ensure that politically sensitive decisionsor difficult decisionsremainon the Part B minutes, and this has been justified as being exemptbecause"itwould constitute the premature release of a draft policywhichisin the courseofdevelopment". If a decisionhas been taken, albeit a difficult one,which does not contain anyother reason under the exemptionsto the Codefor it tobe exemptother than that itwas difficult' or possiblycontentious, then itshouldappearin Part A ofthe minutes.
5. W h ere Committees have receivedprogress reports on the implementation of policy, these have sometimes appeared on Part B oftheagenda and in Part B of the minutes, again with the reason that"it would

constitute the premature release of a draft policy which is in the course of development". But the policy decision

has already been taken, and its progress is being monitored, so progress reports cannot be seen to be confidential unless other exemptions are breached.

6. S e nator S. Syvret proposed an amendment to the Committee's proposals (P.164/2003) which the Committee accepts. His amendment has accordingly been included here, and will ensure that the requirement to draft documentsso as to allow maximum disclosure extends to minutes. This will avoid the possibility that a committee or its sub-committee, in considering a Part A agenda item, might introduce some aspect into the discussion,andpossibly even the decision, whichmaypurport to be covered by anexemptionand thus theminute will become a Part B item. Such an eventmay,ofcourse, be perfectly justified and legitimate, in which case there will be no difficulty in citing the relevant exemptionin the eventofthe information being sought.
7. T h ere remains the option, during consideration of a Part A item, for part ofanissuetoberecordedin Part B of the minutes if confidential information arises.This would comply with the obligation to prepare documentssoasto allow maximumdisclosure.Similarly, matters onPart B of the agendawhich are foundtobenon-contentiouscanberecorded in Part A oftheminutes. This should alsoapplyto matters that were correctly placed on Part B of the Agendabecause they were draft policy but which,following the Committee meeting and decision, can no longer beregarded as draft' policy andshouldberecorded as Part A minutes.
8. T h e more discursive structure of Committee minutesin Jersey has arisen for a numberofreasons. In contrast with the UnitedKingdom,supporting papers to an agenda are notmade available, noristhere a Hansard' style official report of meetings. Therefore the minutes have served as a recordofhow the Committee arrived at its decision, incorporating arguments from reports that have not beenpublished,and also from oral contributions madeduring the course of a meeting not open tothepublic or recorded in any other way.Thishasproved to beanimportant feature of how decisions have been recorded in Jersey and has been strengthened bytheadviceof the RoyalCourtwhichfinds consulting these records crucial when considering appeals against Committee decisions.
9. D e partmentsare inconsistent inthewayinwhich exemptions, provided for within the Code, are usedon Part B items of the agenda.For example, either an exemption code isabsentorexemption 3.2(a)(xiv) [because "it would constitute the premature release of a draft policy which is in the course of development] has figured prominentlywithoutdue consideration to its relevance.
10. M i nutes can be accessed at the StatesBookshopand from departments once the minutes have been signed by the Presidentof the Committee at a subsequent meeting as a true record. Some minutes maybe available after 2 weekswhere a Committeemeets fortnightly and routinely signs its minutesat the next meeting. More often, a longer period elapses,andin the caseofcomplex minutes, suchasthoseof the Environment and Public Services Committee, there may be a lengthy delay in the disclosure of information which is an unacceptable delay unless a pressrelease has been given either in writing or orally.

It is fair to say that some Committees have made strenuous efforts to allow access to the decision-making process to be available. They have concentrated items onto the Part  A agenda, very rarely seeing the need for either a Part  B agenda or minutes. It is the Committee's hope that, through guidance, all States Committees will achieve this standard of openness.

Improvements to implementation of the Code to increase access

Improvements to the Code in respect of Committee work would be temporary, pending the proposed ministerial form of government with a strong scrutiny function which will enable in-depth study of decisions and how they are implemented.

When the States approved the Code of Practice on Public Access to Official Information on 20th July 1999, they agreed that the provisions of the Code, amended as appropriate in the light of practical experience, should be incorporated into legislation. They charged the House Committee (now the Privileges and Procedures Committee) to  take  the  necessary  steps  to  enable  the  legislation  to  be  assessed  for priority  for  inclusion  in  the  States Legislation Programme. As such a Working Party, made up of members of both the Legislation and Privileges and Procedures Committees, was created to make amendments to the Code in the light of experience and work towards appropriate legislation.

The Working Party is currently preparing a draft Freedom of Information (Jersey) Law with the intention, subject to approval of the States, to implement this Law in time for the new ministerial system of government. The preparation of this draft is being viewed alongside the requirements of the Data Protection (Jersey) Law 1987, as amended, the Draft Data Protection (Jersey) Law 200- (P.70/2004), the Official Secrets Act and States members' access to information.

The existing Code has no impact on members' right of access to information, which is determined under the ruling of H.M. Attorney General given in June 1987.

The Code provides access to information, not to files or documents, and departments need not be wary about allowing access to files – this was never envisaged, unless it is acceptable and more convenient for departments to provide the files or documents.

Range of options available relating to Committee business

When Committees originally considered how to implement the Code in relation to their Committee business, they had a number of options, certain of which were prescribed by the States (marked *) –

1. To make Part  A agendas available (that is, the front sheet of the agenda without supporting papers), showing the matters to be discussed*;
2. T o publish Part  A agendas either in paper form or on the internet;
3. T o make all/some agendasupport papers for Part A items available, or to amend ormaskagendasupport papers so asto enable them to be released;
4. T o publish agendasupport papers for Part  A items,amended if appropriate, either inpaper form or on the internet;
5. T o prepare a separate summaryof the decisionstaken during Part  A of the agendaforreleasetothe media;
6. To make Part  A minutes available*;
7. T o make the front sheetofPart B agendas available, showing the exempt matters to be discussed;
8. To draft documents in such a way as to ensure maximum disclosure, splitting them into two parts if necessary so that access to as much information as possible can be enabled*;
9. T o draft Part  B minutes in such a wayas to enable a list of the decisionstobemade available, by referring to information inagendasupportpapersorpartsof such papers not accessible by the public, and by preserving anonymitywhererequired;
10. T o draft minutes generally in a more concise fashion, referring, as appropriate, to agendasupportpapers which include reasonedrecommendations,andwhichmay form part of the record where a fuller record is required, perhaps for the purposes of the Royal Court;
11. T o prepare a separate summaryof the decisions takenduring Part  B of the agenda, and which are capable of releasein a particular form, forreleaseto the media;
12. T o publicise the discussion of items raised as Any Other Business' or at short notice, in order to make the public aware that such matters have been discussed*.

The States required compliance with (a), (f), (h) and (l) above, and Committees across the board comply with the first two of these. There is very little evidence that any Committee complies frequently with (h) or (l). The remaining options, which are used in other jurisdictions, are not generally adopted.

Register of reports

A considerable number of internal and external reports are being produced by the States of Jersey on strategic and/or major policy matters. Any member of the Public interested in reviewing reports issued by Committees whether it be because of an interest in the affairs of the States of Jersey, or for research purposes, must find it extraordinarily difficult to obtain relevant documents because of the lack of a properly constituted Information Asset Register. It would assist the public if a Register of reports and similar documents available to the Public were available for inspection at the States Greffe and that it be updated regularly. The Register could at a later date be placed on the States of Jersey website if so desired.

At present it is extremely difficult to establish what reports are available to a member of the Public. There is currently a list of "R.C.s" available, but that is inadequate as a reference source. The proposal would allow departments to list internal reports that they are content to release to the public on request, together with any official reports generally released to the media and public. This would assist in the provision of information, and further, several years after a report or study document has been issued it will remain listed as available to the Public.

An improvement to the Code is proposed to make access to reports easier for the public and for members – in P a rt II, insert a new paragraph 2.1.2 as follows –

" 2 .1 . 2 A n a u thority shall –

(a ) fo r ward to the States Greffe the names of strategic and/or policy reports prepared

by the authority after the date of adoption of this amendment, to be added to a central list to be called the Information Asset Register (the Register');

(b ) n o twithstanding paragraph 2.1.2 (a), the name of any report deemed to be of public

interest shall be included on the Register;

(c ) w h ere the cost of third party reports or consultancy documents, which have been

prepared for the authority or which are under preparation, exceeds an amount fixed from time to time by the Privileges and Procedures Committee, an authority shall forward to the States Greffe the names of such reports to be added to the Register, together with details of the cost of preparation and details of their status;

(d ) su b ject to the exemptions of the Code, make available to the public all unpublished

third party reports or consultancy documents after a period of five years."

Sub paragraph 2.1.2(b) is drafted so as to allow departments to consider which internal reports they consider suitable to be listed as available to the Public.

With the creation of a scrutiny process, it is also probable that the central list would be useful in the scrutiny function.

Sub paragraph 2.1.2 (c) concerns third-party reports or consultancy documents costing in excess of an amount fixed from time to time by the Privileges and Procedures Committee. It is proposed that this amount should be set at £2,000 in 2004. This figure would be updated at intervals by the Privileges and Procedures Committee. There should be a requirement to publish the title of any report, the cost of such report and its "current status". This action would allow the Public to be aware of what issues are under review or investigation by States Departments even if they may not have access while reports are in preparation, or even when completed, because of privacy issues. Recently, we have seen States Committees being more open by publicly making reference to items under discussion or review, and in some instances, e.g. tax policy, we have seen consultation documents being issued (they of course would appear on the Register).

In defining "current status" the department might use such terms as "In preparation", "For later publication", or "Confidential".

Publishing the costs of third-party reports commissioned would also make departments strict in their controls over

consultants' costs. Recommendations

The 2003 Annual Report on the Code of Practice to Official Information (R.C.18/2004) shows that during that year a total of 222  requests were made for information. Sixty two of these requests mentioned the Code, two of them were refused on the grounds that the requests were frivolous, vexatious or made in bad faith.

With regard to Committee agendas, agenda support papers and minutes, one application from the public for information was received for routine access to Part  A agenda support papers, which was denied. However, the Committee concerned agreed that access to such papers would be considered on a case-by-case basis. There has been an improvement in access to information through increased consultation with the public in a managed way; however there is a desire on the part of the media and members of the public to have access to raw data, rather than pre-prepared consultation material.

Since the Code has been in operation, Committees have become more comfortable with splitting their agendas into Parts A and B, and more items have appeared on Part  A of the agenda, resulting in improvements in the release of Committee information. The Code is a minimum standard only and Committees are encouraged to exceed its provisions. The Committee recognises that it has a role in issuing guidance to Committees in order to ensure consistency across Committees and departments. This role will be met by increasing the availability of information to the public, the media, pressure groups and to States members undertaking research, relating to matters discussed at Committee meetings.

The Privileges and Procedures Committee considers that there should be increased access to information to meet aspirations for greater transparency in decision-making and accountability, and that this can be achieved by –

• e n s u ring that as much information as possible appears in Part  A of Committee agendas and/or minutes;

• m  a k ing Part  A agenda support papers available.

1. E  n suring thatasmuchinformation as possible appears in Part A ofCommitteeagendasand/or minutes

T h e first of the above objectives can be achieved by the Greffier of the States and other officers of the

States Greffe having a more direct dialogue with Chief Officers on the incorporation of as many items on Part  A of Committee agendas as possible, rather than this being only at the discretion of the President and/or Chief Officer concerned.

A r ti c le  2(7) of the Standing Orders of the States of Jersey requires thatThe Greffier shall be responsible

for providing every Committee of the States with a secretary (Committee Clerk)' and this duty includes direction of those Committee Clerks in the conduct of their duties. This includes the manner in which minutes are recorded, and the Greffier has so far not insisted on the transfer of minutes to the Part  A of the minutes, as he has felt obliged to observe the decision of the House Committee that it should not be prescriptive where the implementation of the Code was concerned, and he has taken care not to overrule that decision. However it could be viewed as part of the Greffier's responsibilities to determine whether a minute falls within any of the exemptions in the Code, and therefore to direct that certain matters are incorporated into Part  A of the minutes.

2. M  a king Part A agendasupportpapers available

T h e second point relates to the availability of agenda support papers to the public. In the case of items

included on Part  A of the Agenda, there should be no reason why, in the majority of cases, the contents of the agenda support papers should not be made public, unless to do so would contravene any requirement of confidentiality. This would arise, for example, where an individual had written to an authority in the expectation that his letter formed part of correspondence between the two parties and would not be

published more widely. An example of this might be a letter of representation from a private individual against a

planning application which had been placed on Part A of the relevant agenda. Even if the word Confidential' does not appear on a letter, there can be implied confidentiality, and the author might not authorise the release of the contents of such a letter, which would therefore be exempt under Article 3.2 (b) of the Code.

In g e neral, the release of agenda support papers prepared by officers should be possible. The Committee

does not believe that the volume of paperwork involved would justify the levying of any copy charge, although the Code allows for this if the request is complex'. Such papers may contain advice of departmental officers based on their experience and expertise, together with recommendations, and the Committee believes that staff will adapt to preparing agenda support papers in an appropriate manner. In the past, there may have been a reluctance to release agenda support papers as it was felt to be more beneficial to manage the release of information, usually after a decision has been reached. Members of the public may feel more engaged in political life if they are able to access agenda support papers.

3. E n  suring that the public are promptly briefed on the decisionsthathave been takenatmeetings

W  h e n first considering these amendments the Committee considered whether it would be appropriate to

amend the Code to require Committees to prepare a summary of decisions taken after each Committee meeting and release this to the media within, say, 3 days.

A f te r discussions with representatives of the local media the Committee has concluded that it would not be

useful to make this an actual requirement of the Code. Administrative arrangements in place in support of the Code have ensured that Committee agendas were released to the public four days before a meeting, and the Committee will now formally announce this as a procedure. If agendas and agenda support papers are made available in advance of meetings the news media will, in practice, contact the President or Chief Officer to discuss the outcome of the discussions. This will normally be done very shortly after the meeting and will enable the media to report the decisions immediately. This will, in practice, be better than requiring the media to wait for a news release to be issued, which in reality they would not do.

4. R  eg isterof reports

T h e p reparation of an Information Asset Register will allow members of the public, States Members and

interest groups to be aware of the topics on which reports exist. It will be a matter for the department to determine what reports are strategic and/or policy reports, or report deemed to be of public interest for inclusion on the Register, and they are encouraged to be as helpful as possible in this. For example, a haemophiliac would be interested to read a report prepared either in-house or by an expert in the field of haemophilia, even though such a report might not be considered major' or in any way strategic'.

In o r der to reduce any administrative burden, this requirement would affect only those reports prepared

after the date of the adoption of the amendment. However, departments would be encouraged to indicate whether the names of other, earlier but important reports might be added to the Register.

It i s s tressed that this proposal relates only the keeping of a Register or list of the documents in existence,

and does not require the physical release of the document, which would be on application.

5. S u m maryofproposals

T h e C  ommittee therefore proposes that the States –

(1 ) s h ould approve certain amendments to the Code so as to require Committees to make available

agenda support papers for Part A items, amended or masked where necessary to avoid infringement of the exemptions to the Code so as to enable them to be released, either in paper form or on the internet, and to maintain an up to date list of major policy and/or strategic reports available in departments;

(2 ) re q uest the Greffier of the States to be more proactive in ensuring that Part  B of minutes contains

only those matters that are properly exempt from the Code;

(3 ) re q uest all departments to forward to the States Greffe the names of strategic and/or policy reports

prepared by the authority after the date of adoption of this amendment; the name of any report deemed to be of public interest; the name of third party reports or consultancy documents whose cost exceed a certain amount, which have been prepared for the authority or which are under preparation; and make available to the public all unpublished third party reports or consultancy documents after a period of 5  years, subject to the exemptions of the Code;

an d t he Committee proposes to issue the following guidelines on access to information –

(a ) th a t agendas should be made available 4  days before a Committee or sub committee meeting; (b ) su p plementary agendas should be made available not later than the day of the meeting;

(c ) d is cussion of items raised as Any Other Business' or at short notice should be publicised in order

to make the public aware that such matters have been discussed;

( d ) th a t copies of agenda support papers should be made available not later than the day of the

meeting, with copies being made available to the media prior to the meeting day subject to the strict observance of an embargo;

(e ) to remind Committees of their obligation (in accordance with Article  2.1(k) of the Code approved

on 26th July 1999) to draft all documents in such a way as to ensure maximum disclosure, splitting them into two parts if necessary so that access to as much information as possible can be enabled.

T h e C  ode, showing proposed revisions in italics, is attached at the Appendix to this Report.

The Committee has instructed the Greffier of the States to withdraw its earlier proposition entitled Code of Practice on Public Access to Official Information: measures to improve implementation (P.164/2003).

Financial and manpower implications

The preparation of agendas and agenda support papers so as to allow maximum disclosure does not go beyond the original intention of Part  2.1(k) of the existing Code of Practice, but is merely being added as a separate item for absolute clarity. Those departments that already comply with the Code will not have any additional manpower or financial implications arising from this item.

Making agenda support papers from Part  A items available will have a small cost attached as there may be multiple requests for these papers, particularly from the media and pressure groups, and photocopying and postage charges may be incurred. The majority of this business could be transacted electronically. Nevertheless the Committee does not believe it is unreasonable to expect Committees to meet this small cost from their existing budgets in the interests of promoting more open government. It should be noted that the Code allows for charges to be levied in the case of a complex request for information. The transmission of the names of policy documents to the States Greffe for inclusion on the Register is a minor matter which can be undertaken by e mail as part of existing procedures for classification and filing of documents, and should not be burdensome. There are therefore considered to be no additional financial and manpower implications arising out of this proposition.

APPENDIX A

A CODE OF PRACTICE ON ACCESS TO INFORMATION HELD BY THE STATES, COMMITTEES OF THE STATES AND DEPARTMENTS OF THE STATES

(Adopted by Act of the States dated 20th July 1999)

Proposed amendments are in italics PART I: Description

1. P u r pose

1. T h e purpose of this Code is to establish a minimum standard of openness andaccountabilitybythe States of Jersey, its Committeesanddepartments,through –

(a ) in c reasing public access to information;

(b ) su p plying the reasons for administrative decisions to those affected, except where there is statutory

authority to the contrary;

(c ) g iv ing individuals the right of access to personal information held about them and to require the

correction of inaccurate or misleading information,

w h i le , at the same time –

(i ) s a fe guarding an individual's right to privacy; and

(i i) sa f eguarding the confidentiality of information classified as exempt under the Code.

2. I n terpretation and scope

1. F or the purposes of this Code –

(a ) " au thority" means the States of Jersey, Committees of the States, their sub-committees, and their

departments;

(b ) "i n formation" means any information or official record held by an authority;

(c ) "p e rsonal information" means information about an identifiable individual.

2. In the application of this Code –

(a ) th e re shall be a presumption of openness;

(b ) in f ormation shall remain confidential if it is classified as exempt in Part III of this Code;

3. N othing containedin this Codeshall affect statutory provisions, or the provisions ofcustomary law with respect to confidence.
4. T hisCode applies to information created after the date onwhich the Codeisbrought into operation and, in the caseofpersonalinformation, to information createdbefore that date.

PART II: Operation

1. O  bligations ofanauthority

1. S ubjectto the exemptions listed in paragraph 3,anauthorityshall –

(a ) k ee p a general record of all information that it holds;

(b ) ta k e all reasonable steps to assist applicants in making applications for information;

(c ) ac k nowledge the receipt of an application for information and endeavour to supply the information

requested (unless exempt) within 21 days;

(d ) ta k e all reasonable steps to provide requested information that they hold;

(e ) n o tify an applicant if the information requested is not known to the authority or, if the information

requested is held by another authority, refer the applicant to that other authority;

(f ) m a ke available information free of charge except in the case of a request that is complex, or would

require extensive searches of records, when a charge reflecting the reasonable costs of providing the information may be made;

(g ) if i t refuses to disclose requested information, inform the applicant of its reasons for doing so;

(h ) th e authority shall correct any personal information held about an individual that is shown to be

incomplete, inaccurate or misleading, except that expressions of opinion given conscientiously and without malice will be unaffected;

(i ) i n fo rm applicants of their rights under this Code;

(j ) n o t deny the existence of information which is not classified as exempt which it knows to exist; (k ) u n dertake the drafting of documents so as to allow maximum disclosure;

( l) u n dertake the drafting of Committee and sub-committee agendas, agenda support papers and

minutes so as to allow maximum disclosure;

2. An authorityshall –

(a ) fo r ward to the States Greffe the names of strategic and/or policy reports prepared by the authority

after the date of adoption of this amendment, to be added to a central list to be called the Information Asset Register (the Register');

(b ) n o twithstanding paragraph 2.1.2 (a), the name of any report deemed to be of public interest shall

be included on the Register;

(c ) w h ere the cost of third party reports or consultancy documents, which have been prepared for the

authority or which are under preparation, exceeds an amount fixed from time to time by the Privileges and Procedures Committee, an authority shall forward to the States Greffe the names of such reports to be added to the Register, together with details of the cost of preparation and details of their status;

(d ) s u bject to the exemptions of the Code, make available to the public all unpublished third party

reports or consultancy documents after a period of five years."

2. R e sponsibilities of an applicant

2.2.1  T he applicant shall –

(a ) ap p ly in writing to the relevant authority having identified himself to the authority's satisfaction; (b ) id e ntify with reasonable clarity the information that he requires;

(c ) b e responsible and reasonable when exercising his rights under this Code.

3. A p peals

2.3.1  I f an applicant is aggrieved by an authority's decision to refuse to disclose requested information or to correct personal information in a record, he will have the right of appeal set out in Part IV of this Code.

PART III: Access and exemptions

1. A c cess

3.1.1  S ubject to paragraphs 1.2.3 and 2.1(k) and (l) and the exemptions described in paragraph 3.2 – (a ) a n  authority shall grant access to all information in its possession, and Committees of the States,

and their sub-committees, shall make available before each meeting their agendas, and supplementary agendas, and grant access to all supporting papers, ensuring as far as possible that agenda support papers are prepared in a form which excludes exempt information, and shall make available the minutes of their meetings;

(b ) an authority shall grant –

(i ) a p p li cants over the age of 18 access to personal information held about them; and

(i i) p a r e nts or guardians access to personal information held about any of their children under

the age of 18.

2. E x emptions

3.2.1  I nformation shall be exempt from disclosure, if – (a ) su c h disclosure would, or might be liable to –

(i ) c o n s titute an unwarranted invasion of the privacy of an individual;

(i i ) p r e j udice the administration of justice, including fair trial, and the enforcement or proper

administration of the law;

(i i i) p r e j udice legal proceedings or the proceedings of any tribunal, public enquiry, Board of

Administrative Appeal or other formal investigation;

(i v ) p r e j udice the duty of care owed by the Education Committee to a person who is in full-

time education;

(v ) i n f r in ge legal professional privilege or lead to the disclosure of legal advice to an authority,

or infringe medical confidentiality;

( v i ) p r e judice the prevention, investigation or detection of crime, the apprehension or

prosecution of offenders, or the security of any property;

( v ii ) h a rm the conduct of national or international affairs or the Island's relations with other

jurisdictions;

(v ii i) p r e judice the defence of the Island or any of the other British Islands or the capability,

effectiveness or security of the armed forces of the Crown or any forces co-operating with those forces;

(i x ) c a u s e damage to the economic interests of the Island;

(x ) p r e ju dice the financial interests of an authority by giving an unreasonable advantage to a

third party in relation to a contract or commercial transaction which the third party is seeking to enter into with the authority;

(x i ) p r ejudice the competitive position of a third party, if and so long as its disclosure would,

by revealing commercial information supplied by a third party, be likely to cause significant damage to the lawful commercial or professional activities of the third party;

(x i i) p r e ju dice the competitive position of an authority;

( x i ii ) p r ejudice employer/employee relationships or the effective conduct of personnel

management;

(x i v )  c o n s titute a premature release of a draft policy which is in the course of development;

(x v ) c a u s e harm to the physical or mental health, or emotional condition, of the applicant whose

information is held for the purposes of health or social care, including child care;

(x v i ) p r e ju dice the provision of health care or carrying out of social work, including child care,

by disclosing the identity of a person (other than a health or social services professional) who has not consented to such disclosure;

(x v i i) p re j udice the proper supervision or regulation of financial services;

(x v i i i) p r ej udice the consideration of any matter relative to immigration, nationality, consular or

entry clearance cases;

( b ) t h e information concerned was given to the authority concerned in confidence on the

understanding that it would be treated by it as confidential, unless the provider of the information agrees to its disclosure; or

(c ) th e application is frivolous or vexatious or is made in bad faith.

PART IV: Appeal procedure

1. A n applicant whoisaggrievedby a decision byan officer of a States departmentunder this Codemay in the firstinstanceappealin writing to the President of the Committee concerned.
2. A n applicantwhoisaggrievedby the decisionof an authority under this Code, orby the President of a Committee underparagraph 4.1,mayapplyfor his complaint to bereviewedunder the Administrative Decisions (Review) (Jersey)Law 1982, asamended.