Compliance case no ENF/2019/00006 (FOI)

​​Original ​​Request 690282755

​Please can you provide all correspondence in the compliance case no ENF/2019/00006 including the compliance officer’s notes of all action undertaken.

Original Response

The Information requested has been withheld in accordance with Article 42 (Law Enforcement) of the Freedom of Information (Jersey) Law 2011 as it relates to a Compliance Case.

Article applied

Article 42 - Law enforcement

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

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

Public Interest Test

Whilst disclosure of the information would support transparency to the general public and provide information regarding the proposed development, 

The disclosure could result in a potential risk of criminal activity occurring and that this potential risk outweighs the public interest in favour of disclosure at this time.​

Internal Review Request  

Thank you for your response. Just for clarification Pentagon West was the tenant at unit 8 at the time when the enforcement was served. The company has since vacated the unit and a new business is occupying the premises. Therefore, article 42 no longer applies, in my opinion, as if the information was disclosed it could no longer prejudice or likely to as the enforcement could now only be considered as no longer valid.  

As for the public interest test, if the department did not want to publicly disclose this information on the Gov.je website then it could issue me with a private egress account to be able to access the information.

Internal Review Response

This internal review has been conducted by an official of appropriate seniority who has not been involved in the original decision. As part of their review, they will be expected to understand the reasons behind the original response, impartially determine whether the response should be revised, and how so, considering the request and the information held, any relevant exemptions, or other relevant matters under the Law.    

The Internal Review Panel was asked to review the original response and confirm the following:    

Does the FOI request relate to a body to which the Law applies, or information held by a body covered by the Law?    

If the answer is no, all the other questions are not applicable.        

Further questions if above is a yes:     

i. Was the right information searched for and reviewed? (supply audit if possible)  

ii. Was the information supplied appropriately (supply evidence if possible)  

iii. Was information appropriately withheld in accordance with the articles applied and were the public interest test/ prejudice test properly applied? (supply supporting documents re the test if possible)   

Following discussion, it was agreed by the Panel that:  

1. No

2. No

3. No

The original response has been reviewed and assessed to identify whether the application of Article 42 (Law Enforcement) of the Freedom of Information (Jersey) Law 2011 had been applied correctly.  

The Panel’s decision is that the application of Article 42 should not have been applied, and the documents should be disclosed.

Documents to disclose.pdf​

Personal information within the documents has been redacted in accordance with Article 25 (Personal Information) of the Freedom of Information (Jersey) Law 2011. 

​Data has also been withheld under Article 33(b) (Commercial Interests) of the Freedom of Information (Jersey) Law 2011 as the information is commercially sensitive.

Additionally, we have also withheld data under Article 31 (Advice by the Bailiff, Deputy Bailiff or a Law Officer) of the Freedom of Information (Jersey) Law 2011.

Article 31 and 33 are qualified exemptions; therefore, a public interest test has been applied and is shown at the end of this response.

Articles applied

Article 25 - Personal information  

(1) Information is absolutely exempt information if it constitutes personal data of which the applicant is the data subject as defined in the Data Protection (Jersey) Law 2005. 

(2) Information is absolutely exempt information if – 

(a) it constitutes personal data of which the applicant is not the data subject as defined in the Data Protection (Jersey) Law 2018; and 

(b) its supply to a member of the public would contravene any of the data protection principles, as defined in that Law. 

Article 31 - Advice by the Bailiff, Deputy Bailiff or a Law Officer

Information is qualified exempt information if it is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General.

Public Interest Test

Article 31 of the FOI Law recognises the longstanding constitutional Convention that government does not reveal whether Law Officers have or have not advised on a particular issue, or the content of any such advice. 

The underlying purpose of this confidentiality is to protect fully informed decision making by allowing government to seek legal advice in private, without fear of any adverse inferences being drawn from either the content of the advice or the fact that it was sought. It ensures that government is neither discouraged from seeking advice in appropriate cases, nor pressured to seek advice in inappropriate cases. 

The request for information about whether or not advice was sought, or will be sought falls within the Article 31 exemption.

With regard to the public interest arguments, HM Treasury v IC [2009] EWHC 1811 Blake J recognised that when engaged, the Convention will carry significant weight in the public interest test. The Convention has been considered by the Office of the Information Commissioner and was held to be part of Jersey law. 

Whilst it is recognised that the strong public interest in protecting Law Officers’ advice may still be overridden in some cases if there are particularly strong factors in favour of disclosure, conversely, disclosing the advice or whether advice was or will be sought could inhibit the Law Officers from (1) giving frank advice (2) inhibit government bodies in taking advice for fear of its publication; and (3) inhibit the full disclosure to the Law Officers of all material relevant to the advice being sought and therefore real weight ought to be afforded to this aspect of the Law Officers’ Convention.

Disclosing either the legal advice or the fact of whether specific advice was sought to the public is not a greater consideration of public interest that requires disclosure of the advice or confirmation of what advice was given. It does not outweigh the three principles set out above which require the long-standing Law Officer Convention to be maintained.  

Therefore, the balance is in favour of maintaining the exemption and it is not considered the public interest in disclosure outweighs the preservation of the Convention on this occasion.

Article 33 - Commercial interests

Information is qualified exempt information if –

(a) it constitutes a trade secret; or

(b) its disclosure would, or would be likely to, prejudice the commercial interests of a person (including the scheduled public authority holding the information).

Public Interest Test

Article 33 is a qualified exemption and a public interest test should be carried out by the Scheduled Public Authority (SPA) to determine whether the information should be released.

It is in the public interest to be made aware of any rental fees received by the SPA.

However, the release of the annual rental fees could potentially disadvantage the tenant in any future rental negotiations regarding this site.  

Therefore, it is considered that the likely prejudice to the tenant, should this information be released, outweighs the argument that the release is in the public interest.​