Freedom of Information - proposed legislation

STATES OF JERSEY

r

FREEDOM OF INFORMATION: PROPOSED LEGISLATION

Lodged au Greffe on 19th April 2005

by the Privileges and Procedures Committee

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

( a) to agree that the existing Code of Practice on Public Access to Official Information should be

replaced by a Law, to be known as the Freedom of Information (Jersey) Law 200-;

(b ) to agree that the Law should incorporate the key policy outcomes listed at section 17, numbers 1 to

22, of the report of the Privileges and Procedures Committee dated 19th April 2005; and

(c ) to request the Privileges and Procedures Committee to bring forward for approval the necessary

draft legislation to give effect to the decision.

PRIVILEGES AND PROCEDURES COMMITTEE

Note:  Law drafting time was made available in the 2004 Law Drafting Programme and has been carried

forward.

REPORT

Contents

1. I n tr oduction
2. B a c kground
3. A  d ministrative arrangementsandindividual rights
4. T h e rationalisation process
5. R e i nforcingStatesaims
6. T h e demand for information
7. D  ef iciencies of the Code
8. O  th erbenefitsof a Law
9. I n te rnational perspective
10. C o stsanddisadvantagesof a Law
11. P u blication Schemes, the Information Assets Register andRecordsManagementPolicy
12. M o nitoring
13. E n forcement
14. A p peals, the Administrative Decisions (Review) Board and a Tribunal
15. P o litical and publicsupport
16. F u rtherconsultation
17. P o licy outcomes
18. L a w Drafting time
19. H u manResourceimplicationsand training
20. F in ancial implications
21. C o nclusions

1. I n t roduction

In presenting this Report, the Committee has quite intentionally incorporated much of the text of the Freedom of Information Position Paper (R.C.55/2004), which was published in December 2004. By so doing, the Committee hopes that Members will find all they need for a thoroughly informed debate.

2. B a c kground

Freedom of Information (FOI) legislation has now been under consideration in Jersey for more than a decade. In March 1994 a Special Committee was tasked to investigate the issues involved in establishing, by law, a general right of access to official information by members of the public,' and since then a number of Members, amongst them in particular such stalwarts as Senator Syvret, have kept the flame burning.

The Code of Practice on Public Access to Official Information was approved on 20th July 1999 and introduced on 20th January 2000. At that time the States agreed –

t h a t 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' (P.38/99).

In April 2003 Deputy Breckon lodged the projet "Public Right of Access to Information, Financial and Other Records of the States of Jersey." This was eventually debated on 27th April 2004. Commenting on the projet the Policy and Resources Committee said –

T h e Committee accepts that legislation in this area would be desirable, and provision has been made in the 2004 Legislation Programme for a new law on freedom of information' (P.34/2003 Com.(3)).

That particular projet was defeated but the message was clear: Members believed in legislation as the way

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forward and indeed the intention always was that the Code would naturally precede a Law. It was initially considered to be experimental and, because it was limited in scope, the administrative costs were absorbed in existing departmental budgets. The Code was updated in June 2004 after the States unanimously approved a proposition entitled Measures to Improve Implementation' (P.80/2004) by 47 votes to 0.

Additional to this unanimous support for the enhanced Code, many Members expressed frustration that a Law had not yet been brought forward and urged the Privileges and Procedures Committee to progress FOI as a matter of urgency. There is clearly a strong political mandate in favour of legislation. However, this must be weighed against a prevailing climate that presumes against unnecessary new Laws or expenditure.

Over 50  countries worldwide have already established a Law. There is also a Commonwealth model Law for use by small jurisdictions so that they may introduce their own legislation without over-burdensome preparation. Virtually all of what we might call Western modern-style democracies have a Law in place already.

The Code has inherent deficiencies, amongst which the Committee wish to highlight the following – 1 .  T h e public at present do not have a legal right of access to government information.

2 .  T h e Code does not cover publicly accountable bodies such as the Jersey Competition Regulatory

Authority or the recently incorporated utilities. This is in potential conflict with Article  23 of the Public Records (Jersey) Law 2002 where there is provision for access to public records in the control of bodies that were formerly departments of the States.

3 .  T h e re are inconsistencies of approach between Committees in giving public access to records that

are not yet in the open access period (normally 30 years) and this needs to be corrected. Currently, Article 29 of the Public Records (Jersey) Law 2002 allows very wide discretion and

[2] guidance is needed.

4 . T h e existing appeals process provides for appeals but it does not provide an enforcement

mechanism. This is because any review decision using the Administrative Decisions (Review) (Jersey) Law 1982 cannot be enforced.

5 .  T h e Code is managed and monitored as one of many tasks in the responsibility of the States Greffe

rather than by an independent office.

6 .  U  n der the current Code the exemptions can be applied as absolute exemptions as there is no

overriding public interest clause.

[3] 7 .  C e r tain existing exemptions overlap, lack rigour or are not in accord with a spirit of openness.

8 . T h e  Committee  believes  that  Jersey  is  now  out  of  step  with  many modern  and democratic

jurisdictions where the legal right of access to information has been long-established.

9 . Je r sey has a range of rules embedded in law which directly concern the management and

protection of public information but access to that same information is merely governed by a non- legal Code. The Committee is of the opinion that it is inconsistent to leave access to information outside the law.

Notwithstanding the force of the above, in recognition of the change of heart that some Members and Committees may now have had about the need for a Law, the Committee brings this Proposition to the States so that Members may re-state their intention in principle. The draft Law will of course return to the States in due course for debate and final endorsement, if this Proposition is agreed.

3. A  d ministrativearrangementsandindividual rights

Freedom of Information law may be seen as forming part of a body of Laws designed to give an administrative framework to government. Examples would include the States of Jersey Law, the Public Finances Law, the Public Employees (Retirement) Law, other Pensions enactments and the Administrative Decisions (Review) Law.

However, Freedom of Information also falls naturally into the category of Laws occupied by Human Rights, Public Records and Data Protection in that all of these are part of the concept of balancing individual rights against the increasing pervasiveness of the State and other public bodies.

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In both these categories it has been historically accepted in Jersey and elsewhere that a clear framework is best laid down in legislation rather than in a non-enforceable Code. If Freedom of Information remains outside formal legislation it seems as if it is the odd one out.' Indeed, on the assumption that the public right of access to information is no less important than these other Laws, this fact may be persuasive in its own right. However, it does not by itself mean that Freedom of Information should become embedded in law.

In introducing a law, governments have signalled to the public that they are making a commitment to openness and that they seek to improve public knowledge of how government works. Public engagement in the political process is seen as a hallmark of the modern democracy. If the choice is made to leave the matter of Freedom of Information to an unenforceable Code it will remain essentially an administrative guideline and no more.

The Committee believes that the force of law is required to precipitate a culture change in the public sector and move the balance in favour of ordinary citizens, giving them a legal right of access to government information. Despite good intentions at the inception of the Code it has not caused a culture change in the States hitherto.

4. T h  e rationalisation process

In other jurisdictions Freedom of Information legislation was regarded at the outset not as a standalone Law but an integral part of reform and as absolutely fundamental to the maturation of democracy.

In Jersey, the separate development of Data Protection and Public Records Laws inevitably overlaps with, and impinges on, the concept of Freedom of Information. Currently the Committees responsible are Finance and Economics for Data Protection, Education Sport and Culture for Public Records and Privileges and Procedures for Freedom of Information.

Logically the three should be looked at as a coherent whole. The drafting of a Freedom of Information Law presents the Assembly with that opportunity. Very careful consideration has been and continues to be given to all relevant existing legislation to ensure that the new Law occupies a complementary position.

The Public Records (Jersey) Law 2002 came into force on 1st August 2003. The Privileges and Procedures Committee is aware of inconsistencies of approach between Committees in giving public access to information that is not yet in the open access period (normally 30  years) and is not exempt for other reasons. The proposed Law will need to offer more specific guidance and to achieve this, the Committee has taken advice from Jersey Archive.

The Committee has clarified within the draft Law access rules to govern information which was created before  the  Code  came  into  force  but  which  is  not  yet  in  the  Open  Access  period.  (Law  Drafting Instructions at 3.8)

Furthermore, the Committee has undertaken consultation with a view to whether it should in future be responsible for all 3  Laws. The aim of such an approach would be to ensure rationalisation and coherence are maintained for the future. This would prevent further divergence and unnecessary expansion of legislation and would be very much consistent with the regulatory reform initiative.

As a result of comments received following consultation (R.C.55/2004), the Committee recommends that Data Protection and Freedom of Information should both be funded through the States Greffe annual budget and that the Committee should have oversight for the purpose of taking any future propositions or annual reports to the States, (Law Drafting Instructions 9.1). The role of the archivist and the Public Records Law would remain under the Education Sport and Culture umbrella.

5. R  ei nforcing States aims

From the above it can be seen that a Law would be consistent with other public policy matters which have already been addressed through legislation. It would create a framework that could be seen to be apolitical. It would also define clear statutory responsibilities, duties and rights and be enforceable in a way a Code can never be.

The States have recently approved 2 high-profile policy documents – the Strategic Plan 2005 to 2010 (P.81/2004) and the Public Sector Reorganisation: Five Year Vision for the Public Sector (P.58/2004) – that set out aims for the  next  five  years  and  make  a  commitment  to  greater  transparency  and  accountability.  Creating  legally enforceable Freedom of Information rights for the people of Jersey would, in a single emphatic act, explicitly reinforce these aims.

For example, Aim Number Eight of the Strategic Plan approved by the States on 30th June 2004 sought to reconnect the public and the States and promote community involvement in Island affairs'. The document recognised Jersey's low levels of voter turnout – regularly less than 30% – as evidence of a democratic deficit in the Island and disenchantment with government.

Aim  6.2.1 sets out to"Promote a better understanding of the issues facing the Island today and encourage debate and aid informed choices." Aim  8.2.4 states that we should"ensure appropriate transparency and openness in Government," whilst Aim  8.3.3 states that we should"develop a more consultative approach to governance and encourage public participation in policy making." All these will be aided directly by the proposed Law.

The £9.4  million Visioning Project asserted:The need for change in the public sector is being driven by major external changes and a general political unease generated by poor public perception of the States of Jersey and the public sector. There is a disconnection between the electorate, politicians and the public sector in Jersey that is unhealthy and breeds frustration and mistrust throughout the community.'

The recent publicity surrounding the JCRA Audit Report, which included serious allegations of mismanagement,

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served to reinforce negative public perceptions. Under this proposed Freedom of Information Law the title of that report would have been included on the Information Asset Register and much, if not all, of it would have been available for release without the public being dependent on a leak.

From the public perspective, the force of law carries great weight and offers a legal right that simply cannot be offered in a policy or Code. Under the current system an individual seeking information relies, to an extent, on goodwill of the officers involved. This can be a deterrent for researchers who assume there is a culture of secrecy. A Law would replace this element of chance with a system where there were a statutory duty to assist.

The success of a culture change will be difficult to quantify but only a Freedom of Information Law provides concrete proof that the States is serious about putting the benefit of the public first and the convenience of politicians and civil servants afterwards.

6. T h  e demand for information

Since the Code came into force, on 20th January 2000, the recorded number of requests for information may seem low. However, recorded requests do not tell the whole story and anecdotal evidence indicates that quite a number of informal and unrecorded requests are being dealt with on a daily basis. Historically, the record of applications where the Code has been specifically mentioned is as follows –

Jersey

Comparison  with  other  jurisdictions  is  not  easy  and  equivalent  information  from  England  and  Wales  was unavailable. However, the Scott ish Executive publishes comparable data.

Scotland

Considering the largest of these, a per capita comparison of the 253  requests made in 2002, (in a Scott ish population of over five million) would represent just 4.4  requests per annum in Jersey.

7. D  ef iciencies of the Code

The deficiencies of the existing Code were highlighted by several States Members during the recent debate on the

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improvements. The rapporteur, Constable Derek Gray, stated: This Code established a minimum standard and committees, in accordance with States policies, should meet these standards. Unfortunately in some cases the minimum has also become the maximum, and this was never the intention of the Code.'

As a testing ground, the Jersey Code has served a valuable purpose in dispelling myths that allowing public access to data is unworkable, over burdensome to States Departments or diverts attention from core work.

If we continue with a voluntary Code, politicians and public servants know that they can in effect sidestep the publication  of  embarrassing  or  difficult  information.  Experience  in  the  U.K.  has  shown  that  this  is  not  a hypothetical scenario. U.K. Ministers have refused to comply with three rulings of the Parliamentary Ombudsman

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under the previous Open Government Code, which had been in operation from 1994 until the Freedom of Information Act 2000 came into force on 1st January this year. The Labour government simply ignored the decisions that it did not like, most notably regarding a list of gifts given to Cabinet Ministers. The lack of sanctions means there is always an alternative to compliance. It tells politicians and civil servants they never really have to change.

8. O  th er benefits of a Law

The introduction of a Freedom of Information Law raises the same issues about effective record keeping as under Data Protection, with which there are important parallels. In the long term it will be healthy for politicians, civil servants and the public alike to be able to access documents easily. There is an argument that this will improve the quality of both debates and decision-making.

U.K. experience[8] shows that organisations who manage their data efficiently will find the transition to a Law relatively painless, while those that are less well organised will experience some difficulty and greater manpower

implications. The benefits of improved records management should not be underestimated.

In this regard, it should be noted that the Education Sport and Culture Department engaged a records management specialist from the U.K. in order to aspire to best practice with regard to data protection and Freedom of Information. The study has produced a number of recommendations that could be valuable corporately and the department will continue to take the lead.

Within the Law the Committee will propose a power to make Regulations to vary exemptions and to vary which

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public authorities are covered. There will be a power to introduce a publication scheme . There will also be a power to modify the role of the Commissioner if increased monitoring or enforcement were needed. This makes the Law a flexible instrument capable of evolving with time.

Consistency with other jurisdictions is not just about keeping up with other modern states. It is also about recognising that a considerable part of Jersey's professional workforce is trained at least in part or has worked in other western countries. Proceeding with the Law will prevent a growing disparity of standards between Jersey and other democracies.

The current Code is followed by Committees and departments. Being a Code it cannot be made a requirement for any other group. The draft Law will propose a list of public authorities which can be wider than that narrow definition should the Assembly so wish it. If official information is held by others such as a States owned company or the JCRA for example, it can be argued that, providing the information is not exempt in accordance with the agreed list of exemptions, then it should not be withheld. It is only through enacting a Law that the States will gain the power to put such information into the public domain.

The proposal is for the scope of the draft Law to be wider than the existing Code so as to provide for the release of public information held by other public authorities. The definition of an authority would include the States of Jersey, officials of the States, Committees, Ministers and departments (whether executive or non-executive), the courts, statutory bodies, publicly-controlled corporations and any other organisation established by the States or which exercise functions of a public nature. (1.1 and Appendix 1 of the Law Drafting Instructions)

9. I n t ernational perspective

As already stated more than 50  countries have some form of Freedom of Information legislation. This, of course, varies in quality and effectiveness. In the U.K., public rights of access under the Freedom of Information Act (2000) came fully into force in January 2005 following a long implementation period designed to enable U.K. authorities to set up publication schemes and comply with the new legal requirements.

The U.K. Freedom of Information Act, in spite of some limitations, has nevertheless now given the British public a right to information enshrined in the statute book. In doing so it has joined Australia, Canada, New Zealand, South Africa and many others in the Commonwealth and elsewhere.

In addition, adoption of a Freedom of Information Law, and more particularly the publication scheme that could follow, could enable Jersey to comply with the Aarhus Convention on Access to Environmental Information and

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Directive 2003/35/EC of the European Parliament , which guarantees public access to environmental information and participation in decision making. The Environment Department has advised that Jersey could not currently meet the criteria, which include free access to government-held data that would be possible under a Freedom of Information Law.

A gap exists in Jersey that is covered in the U.K. by other statutory instruments governing access to information. These include the Environmental Information Regulations 1992, which put into effect EC Directive 90/313/EEC, and the U.K. Local Government (Access to Information) Act 1985. Nothing similar exists in Jersey.

If the States decides not to proceed with a Law, it would be extremely difficult to justify why Jersey residents should be less legally entitled to government information than their counterparts in the U.K. or a range of other countries.

Conversely, the introduction of a sensible, balanced and workable Law could bring public relations advantages for Jersey on the international stage. This could help counter some of the adverse criticism that the Island can attract.

10. C o sts anddisadvantagesof a Law

It has already been established that a Freedom of Information Law, by its very nature, will generate some cost rather than income. It has been argued that a disadvantage of putting the Code into law is that there will be an increase in bureaucracy just at a time when the initiative has been taken to look at red tape' and reduce it. Bearing this in mind, the proposed Law has been designed to keep bureaucracy to an absolute minimum by its light touch' approach.

The Committee propose enhancing the role of the Data Protection Registrar to take on Freedom of Information. The intention is to limit the enhancement only to what is absolutely essential. As a result, to fulfil the additional role a reallocation of resources may be needed.

It is claimed that the number of requests for information that may get as far as the Commissioner could create a bureaucratic burden. In fact the number is estimated to be extremely small and most likely will not exceed 2 or 3  cases a year, as illustrated in the table in section  6, above.

If a comprehensive publication scheme were being recommended at this stage then it would be true that new costs and more work were being imposed on individual departments too. It is not. It would also be true that extra work would be involved if all pre-existing data were being opened up to access simultaneously. This process would entail classifying all information and perhaps imposing a standard computer hierarchy of all future and historic data. The Committee proposes that the issue should be reviewed once the Law, if adopted, is in place.

So, the Law will not actually give the public any more red tape' whatsoever. It will provide a statutory framework for the individuals who make up the public service and other public authorities to comply with but it will not add to the procedures that the public have to go through at all.

There are concerns amongst some professional bodies within the public service. For example the release of Magistrate's Court records must be carefully considered where they may contain information that is personal. Health and education records would also need to be appropriately protected. However, the issue is certainly not insurmountable and is already covered within the exemption rules and the Data Protection (Jersey) Law 2005.

Another concern is that a Law may encourage evasion techniques such as holding unrecorded meetings. The answer must be to encourage the highest standard of professionalism and openness amongst public authorities and for States Members to lead by example. Furthermore, this very same point was raised in the debate on the introduction of the Code of Practice and the fears expressed then have not been realised.

A further issue is that there may be a cost to the individual who wishes to access information. The Committee's view is that information that would be free should include all agendas, A' agenda Minutes, all associated papers and annual business plans. Where a department publishes additional material it should as far as possible be available on the appropriate website or by e-mail, although in some cases it may be necessary to provide hard copies.[11] That would be a decision for the department concerned.

Guidelines for the coming into force of the Freedom of Information Act in England and Wales are that most information  should be free. However,  this will not apply where retrieval costs may exceed £450 for local government material and £600 for central government material.

The Committee's policy within the draft Law is that requests for information should generally be free of charge. (See Law Drafting Instructions at 9.2)

11. P u blicationSchemes, the Information AssetsRegisterandRecordsManagement Policy

Under  the  U.K.  Freedom  of  Information  Act,  authorities  were  each  required  to  produce  a  comprehensive publication scheme describing the range of information they publish. Anecdotal evidence suggests that they have done so with varying degrees of success and reluctance and sometimes at considerable cost.

The smaller scale of public administration in Jersey means that separate schemes for each department may be cumbersome  and  prohibitively  expensive  at  the  outset  of  the  Law.  The  Information  Asset  Register (www.gov.je/statesreports) provides the starting point for a more user-friendly option tailored specifically for Jersey. The public already have the ability to download and print copies of many of the non-exempt reports straight from the list.

This is a small-community manageable initiative. It clearly complements other major initiatives underway such as the production of all States departments' Business Plans in a standard format which will then be collated and made available to all. There is also the new Call Centre project and the Regulatory Reform initiative.

It may be that a more comprehensive publication scheme should be developed in the future and in the light of experience. Whilst such a scheme could be introduced under an amended Code, there is a distinct advantage in the formality and authority of using a Law to do this. The proposed Freedom of Information Law would enable the States to introduce this by Regulation if necessary.

The Privileges and Procedures Committee will continue to consider and review the need for a publication scheme. Both records management and publication schemes should be looked at together to ensure a commonsense and manageable process.

Finally, concerning records management, a legal duty to manage pubic records already exists, as clearly stated in Article  38(1) of the Public Records (Jersey) Law 2002. Further provisions can be made formally by States Regulation under Article  38(2). Responsibility for this rests with the Jersey Archive Service and the Committee sees no need to recommend change here.

12. M  onitoring

The issue of how to secure effective and low cost monitoring is never easy to resolve but effective monitoring is surely a necessary goal whether Freedom of Information is written in Law or a Code.

The Committee proposes that a light touch' process of minimal official monitoring would place such a role in the hands of an independent Information Commissioner who would be given a statutory duty to report annually on the practical working of the Law. There is logic and convenience if that person is also the Data Protection Registrar.

The importance of placing Freedom of Information into a legal framework is that it shifts ownership clearly to the individual member of public and away from a purely administrative procedure. This shift allows the individual to become part of the monitoring of effectiveness, in that once the Code becomes law he or she then has new rights and can insist on them. A Code leaves the onus on the shoulders of the administration alone.

The Committee propose that the process of official monitoring and oversight should be carried out by an independent Commissioner with statutory powers. The recommendation is that the Commissioner should also be the Data Protection Registrar and thus avoid a new bureaucracy being set up. (Law Drafting Instructions at 6)

13. E n forcement

One of the absolutely central reasons for deciding on whether a matter should be left as an administrative Code or a matter of public law is that of enforcement. It is by definition only through law that one can provide statutory enforcement. It is a measure of the importance placed on the subject matter that it should be embodied in law.

The comparison with other Laws is apposite: In the Draft Public Finances Law it has been seen to be necessary to have some penal sanctions to ensure enforcement and it is interesting to quote directly from the projet: "The existing Law is lacking in this area as compared with other jurisdictions, with virtually no sanctions and no penalties for non compliance with its provisions. The new Law has been given "teeth" in that there is set out a number of offences and penalties relating to the Law which have been approved by the Attorney General."

Three examples from the Draft Public Finances Law are of interest: Firstly, "Article  58 makes it an offence to fail to provide a record or information when required to do so by a person acting in accordance with the Law." Article  64 provides that a person can claim certain privileges against disclosure of information but cannot refuse to disclose information on the grounds that doing so may tend to incriminate the person . In Article  65 the Royal Court is given a specific role to order compliance "to produce a record that is in the person's possession or under the person's control; or to provide any information that the person is able to provide."

These Articles reveal a desire to legislate with regard to information. The need to do so has been with us for a long time and can of course be found in the Island's Official Secrets (Jersey) Law 1952, where national security makes it essential that we guard sensitive information.

Such Laws show the obverse to the Freedom of Information concept – on one side there is control of information and on the other there is access. For many, just as the duties to protect information are already embedded, it is natural that a mature and confident democracy should want to make rights of access also enforceable in law.

The Privileges and Procedures Committee propose to introduce specific offences and penalties so that enforcement can be legally binding. These are listed in the Law Drafting Instructions at 8.1 and should be read in conjunction with the suggested defences at 8.3.

14. A p  peals, theAdministrativeAppeals (Review) Board and a Tribunal

Currently, because the Code is just that, a Code for officials to follow, and not enforceable in law, the only appropriate mechanism when an applicant has had access to information refused has been the administrative procedure of taking the matter to a Board established under the Administrative Decisions (Review) (Jersey) Law 1982. The Board can investigate and find that the original decision should be reconsidered.

This reconsideration may mean that the same decision is reached again. If the Committee does reach the same decision, any Member may then bring a proposition to the States to ask the Committee concerned to reconsider its decision again but even this is not binding. Furthermore, whilst the Board is entitled to find an administrative decision has been made contrary to law (Article  9(2)(a)) it has no power to enforce the law.

Crucially, it can be seen that such a process is not a legal one and it may well not be resolved satisfactorily.

Furthermore, it is traditional for governments to seek to ensure separation of power between the executive, the courts and the legislature in order achieve a sensible balance and avoid a concentration of power. In Jersey that is achieved in part by the separate and independent functions of the Courts and the States Assembly.

As a solution to this difficulty, the Freedom of Information Law would introduce a legal appeals process whilst not prohibiting the use of the Administrative Decisions (Review) Law if it were found to be appropriate on certain occasions. This process would make full use of the existing Data Protection Tribunal (reincarnated as a new Information Tribunal) and ultimate referral to the Royal Court if necessary.

Apart from other arguments in favour of this route the Court provides an independent and impartial tribunal that fully complies with Article  6 of the European Convention on Human Rights.[12]

The Privileges and Procedures Committee propose to modify the Data Protection Tribunal so that it becomes the Information Tribunal with the Royal Court as final arbiter. The Administrative Decisions process would still be available but this does not need to be written into the law. (See Law Drafting Instructions at 7)

15. P o litical andpublicsupport

Political support has been strong. The Committee published a detailed Freedom of Information Consultation Paper (R.C.15/2003) in March 2003. Following this, Deputy Breckon lodged a Proposition to establish a general right  of  access  to  official  information  by  law  (P.34/2003)  and  in  its  comments  the  Policy  and  Resources Committee stated "The Committee accepts that legislation in this area would be desirable, and provision has been made in the 2004 Legislation Programme ." That Proposition was debated as recently as 27th April 2004 and failed largely because neither the Policy and Resources nor Privileges and Procedures Committees believed it offered quite the right way forward. However, the principle of a need to legislate was never in doubt.

On the matter of a Register of Reports (P.196/2003) the Finance and Economics Committee said "the Committee supports the assertion of the Privileges and Procedures Committee that this issue would be better addressed within the overall context of a Freedom of Information Law."

All Committees were written to in August last year and invited to comment on both the adequacy of the exemption list and the principle of a law. Seven gave specific and constructive replies, of which four were confident that a law was needed, one felt it was not a Committee matter and should be left to individual members and one was divided. The seventh, Policy and Resources, appears now to be opposed save for Senator Kinnard, who has asked for her dissent to that opposition be recorded. This opposition seems to stem from a belief that the Code is working well and that a desire to pursue Regulatory Reform and in particular reduce red tape' should now take precedence.

The Privileges and Procedures Committee disputes the true effectiveness of the Code. It has no desire to produce a burdensome system and has designed a law that complements the visioning process and Regulatory Reform initiatives of the Policy and Resources Committee.

The Citizens' Advice Bureau is supportive of a law as a matter of policy. Not surprisingly it has been the Media who have been very supportive on philosophical grounds alone. There is a belief that there is a traditional culture of secrecy which needs to be combated. Removing both this perception and the reality where it exists must be based on how best to benefit the public and not how to protect the politician or civil servant.

A key issue raised by the Media has been whether the net of exemptions has been thrown too wide. The Committee shares the concern yet wishes to tread very carefully. It is noted that section 36 of the Commonwealth model law allows disclosure of exempt material in the public interest. However, the Committee are mindful that alongside such a power to release exempt material there must also be the appropriate protection for the individual against a release which was motivated by malice or was not justified by public interest. The celebrated Naomi

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Campbell case gives useful guidance on the matter as does the United Kingdom Code of Practice of the Press Complaints Committee. Further guidance on what constitutes public interest has recently been given in the European Court of Human Rights[14].

The Committee propose two ways of addressing public interest: firstly that by Regulation the States will be empowered under the Law to alter the exemption list if it is found to be too restrictive (Law Drafting Instructions at 9.3.1). Secondly it is proposed to create a public interest power to release particular information that would otherwise be exempt (Law Drafting Instructions at 3.9 and 7.2.4).

16. F u rtherconsultation

A final Paper was produced in December 2004: "Freedom of Information – Position Paper" (R.C.55/2004). In publishing R.C.55 the Committee invited all States members and the public to respond. The key results of the consultation are as follows –

R.C.55/2004: Responses to Position Paper

7. Data Protection Supports principle of Law. Needs re-assurance on issue of Registrar resources. Recommends good private sector consultation.
8. Deputy Labey Supports principle of Law. Welcomes co-ordinated

(in her role on ESC approach to record keeping, management and standards. Committee regarding Would want independent oversight.

archives)

9. Environment If Jersey were to seek to have the Aarhus Convention on Department Environmental information ratified on its behalf a FOI Law would help in establishing and embedding principles. More resources would be needed for meaningful access and participation in the Convention thereafter.
10. Jersey Competition Generally supportive of proposed changes. Emphasised Regulatory Authority need to keep exemptions (ii) and (iii) so as to prevent release of information that might otherwise prejudice compliance investigations. Also would like retention of exemption (xiv) concerning policy development.
11. Jersey Electricity Opposed. Concerned over cost of getting filing and retrieval systems up to standard.
12. Jersey Evening Post Supports principle of Law and in particular a Public Interest release policy.
13. Jersey Financial Supports principle of Law. Would wish to ensure similar Services Commission exemptions to current Code. Supportive of no-fees policy and would make use of Information Asset Register.
14. Jersey Post No further response but had done so previously (Sept.  04). Supports principle of Law. Would wish to ensure similar exemptions to current Code.
15. Jersey Telecom Not clear as to what official/public information it holds. Would hope PPC will take the need for a level playing field' between private companies and States-controlled companies into account when drafting legislation.
16. Jersey Water Does not wish to see extension of Law to States- controlled companies. Concern over shareholder confidence and extra resources to manage compliance with the Law.
17. Policy and Resources Committee does not think sufficient grounds exist for Committee Law. Believes costly and seeks costings. Considers Law is contrary to States approved initiative on Regulatory Reform but not philosophically opposed to Law.

The Commonwealth Human Rights Initiative has provided practical advice and comment on the proposals. Additionally, to ensure wide awareness of the issues involved, the following  groups were also specifically contacted at the time of the publication of the Consultation Paper –

BBC Radio Jersey Chamber of Commerce Jersey Finance Institute of Directors

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17. P o licyoutcomes

The Committee has considered very carefully the concerns expressed during consultation. It has also been greatly encouraged by many who have urged that an effective Law should be introduced.

It  remains  convinced  that  the  Law  must  have  a  presumption  of  openness  at  its  core  and  that  all  official information should have the potential to be considered for release. In other words, there should be no blanket absolute exemption for a particular category of information or a particular government agency. Furthermore, whenever possible the information should be available at no charge to the applicant and there should be no restriction as to whom may apply.

Notwithstanding its belief in freedom of information, the Committee is committed to a Law that will recognise the need to keep some information confidential. It is important therefore to recognise that the appeals process works both ways in that it can be used to prevent information being released just as it can be used to ensure information is accessed. Crucially, the appeals process must be on an independent and legally enforceable footing.

It is believed all policy issues are dealt with within the Law Drafting instructions, but Members will perhaps find a summary of key policies useful –

1 .  A  ll information should be capable of being considered for release. In particular, information

created before the Code came into force on 20th January 2000 and which is not yet in the Open Access Period should be released on request unless exempt in accordance with the agreed list of exemptions.

2 .  T h e re may be circumstances when there is an overriding public interest greater than the purported exemption. Such an interest will be built into the Law but can be appealed against.

3 .  A  ll legal persons (both individual and corporate) should have a right to apply, regardless of their

nationality or residency.

4 .  A  p plication, especially for readily accessible information, should not be restricted by having to be

in writing.

5 .  A  u thorities that are emanations of the state or majority owned by the public should be bound to

release relevant information.[15]

[16] 6 .  T h e Law would not apply to States-aided independent bodies.

7 .  A  f ormal publication scheme is not yet proposed but authorities should be encouraged to publish as

much information about themselves and their activities as possible and will be required to use the Information Asset Register.

8 .  A  u thorities are to be encouraged to develop records and document management schemes which

will facilitate retrieval of requested information.

[17]

9 .  I n fo rmation should in general be released free of charge and proportionate assistance should be

given to a special need, such as an individual's sight impairment.

1 0 . I n formation should be released as soon as practicable, acknowledgements should be within

5  working days and the 15  working day guide is to be seen normally as a maximum for a decision to release th