Freedom of Information: Some Comments

 “A former government department will be included in Jersey's upcoming freedom of information law, if an amendment by the chief minister is approved. Andium Homes, which used to be the Housing Department before being turned into a government owned company, was not previously included in the law. The freedom of information law covers States of Jersey departments and comes into force on 1 January 2015. Senator Ian Gorst wants Andium Homes to be included from the start. A spokesman for Andium Homes said it planned to abide by the law on a voluntary basis anyway.”(1)

This is the big law coming up, although just like the UK, there will be exemptions. Criticism was made in the last Assembly that Andium Homes would be outside of the remit of the law, and it is good to see that Senator Gorst has taken on that criticism. The amendment says:

“The purpose of this amendment is to add Andium Homes to Schedule 1 so that the

Freedom of Information (Jersey) Law 2011 (“the Law”) will apply to that incorporated body, to take effect from 1st January 2015, that is from the same date as all departments of the States”

The question relating to it was made by Deputy Roy Le Hérissier in September this year, when he asked:

“Does the Chief Minister consider that agencies like Andium should be subject as soon as possible to the full provisions of the Freedom of Information (Jersey) Law 2011?

Ian Gorst was not present so Ian Le Marquand answered in his behalf:

“It is the intention of the Chief Minister, if he is still Chief Minister after the 2-stage elections, first of all to bring a proposition to the States to extend to the Parishes from September 2015 and then to phase-in the other such items, including Andium, which potentially lie within the law as soon as is reasonably possible.”

The importance of Andium being under the Freedom of Information Law was made plain in that assembly by Deputy Judy Martin:

“Up until Andium became Andium and was Housing, any tenant could - and I have been with them - go in and see every record about themselves.”

But Constable Juliette Gallichan gave an example of what could and what would not be made available under the new Law:

“This gives a right to information unless that information is in the absolute exempt category. But public, official and statistical information, the costs of doing various things can be accessed, but not information like ‘does Mrs Smith have a house in St Mary?”

That makes sense, because while an individual has a right under Data Protection to obtain information about their own situation, they would not have the right to get private information about other people. In fact, in the September Assembly, Mike Higgins pointed out that Data Protection would still allow individuals access to their own data:

“The Freedom of Information Law does not mean lack of information for residents.

Residents can still get their information under the Data Protection Law. If they file a subject access request, any personal information they are entitled to get.”

So what kind of information might we expect from Freedom of Information and Andium Homes? In March 2013, Tom Morrison, writing in the New Law Journal, posed precisely this point:

“Whereas the Data Protection Act 1998 (DPA 1998) gives individuals the right to ask any person or organisation for a copy of information which is held about them, the Freedom of Information Act 2000 (FIA 2000) gives every person or organisation the right to ask any public authority for any other information it holds. In broad terms, unless an exemption applies, a public authority is likely to have to provide the information requested within 20 working days”.

So what kind of questions might be posed?

Without naming names, bands of salaries of employees – as for the States – can be obtained. They can be compared with the salary banding of the States sector, and indeed of the former Housing Department – Andium has taken over staff. Average (mean) and Median pay would also be useful to see if the privatisation of housing has led to inflation of salaries. As well as senior pay, details on severance payments would be useful to obtain.

Other questions which could be asked:

What was the range of rents, median rent, average rent and rises?
How many new social housing tenants were there in particular years?
How many existing social housing tenants were there in those years?

It can be seen that Freedom of Information requests relate to broad matters, whereas personal data requests would come under Data Protection. Freedom of Information requests should not conflict with Data Protection.

In the UK, and in Scotland, one of the requirements of a Freedom of Information Act is that a public authority should routinely and proactively make certain types of information available. This requirement is referred to in the Act as a “publication scheme”.

I expect we will see this planned and occurring in Jersey.

Examples – taken from the Homes and Communities Agency include:

Details of all expenditure over £500
Details of tenders and contracts
Financial statements
Staff and board members allowances and expenses
Procurement and tendering procedures
Lists of contracts awarded and their value
Financial statements for projects and events
Internal financial regulations
Records Retention Schedule
Strategies and plans, performance indicators, audits, inspections and reviews
Annual business plans / annual reports
Statistics produced
Decision making processes and records of decisions
Public consultations
Minutes of senior level meetings
Internal Communications guidance and criteria used for decision making
Policies and procedures
Regulatory responsibilities

Obviously, if these do not fall into the “publication scheme”, they can be subject to Freedom of Information requests.

References
http://www.bbc.co.uk/news/world-europe-jersey-29987765
http://www.newlawjournal.co.uk/nlj/content/private-eye-4
http://www.homesandcommunities.co.uk/publication-scheme