Ports of Jersey and Freedom of Information Law (FOI)

Request

The Freedom of Information (Jersey) Law 2011 covers all Scheduled Public Authorities. A Scheduled Public Authority (SCHEDULE 1) is defined as 3. A committee or other body established by resolution of the States and 4. A department established on behalf of the States under Schedule 1 of the Law. Under interpretation "public authority" means (c) a committee or other body established by a resolution of the States, (d) an administration of the States.

Given that the Incorporation of Ports of Jersey was established by resolution of the States (P.70/2012) and that the operation of Coastguard remains an "administration of the States" under its international obligations, can you provide documentary evidence as to why Ports of Jersey has not been covered by the Freedom of Information Law 2011 since it was passed (which may explain why no action was taken in respect of Deputy Labey's proposition to extend the law to cover it, which was passed several years ago). An explanation as to why an entity established by a resolution of the States, which is also an administration of the States is not covered, would be welcome.

Response

The Privileges and Procedures Committee lodged P.39/2011 – Draft Freedom of Information (Jersey) Law 201- on 15th March 2011, which was debated in the States Assembly on 25th November 2011. This proposition recommended (at 2.41 onwards) which public authorities should be covered, with others being capable of being added in the future by Regulation: 

P.039-2011 Draft Freedom of Information (Jersey) Law 201- (LW)[P&PC] (gov.je)

The record of the debate is covered in Hansard on 3rd May 2011at point 6 onwards and 4th May 2011 at point 1. This includes at point 6.2.1 The Connétable of St Mary advising that: 

Public authorities include, among others, Ministers, committees, panels, departments, Parishes and the police. However the Committee has agreed that implementation of the Law across these authorities should be staggered and that it should initially apply to the scheduled public authorities listed at Schedule 1 with other authorities being introduced through the adoption of “coming into force” Acts. 

3 May 2011:

 Hansard (gov.je)

4 May 2011:

Hansard (gov.je)

At that time the Harbours and Airport were under the administration of the Economic Development, Tourism, Sport and Culture department, subsequently coming under Ports of Jersey once incorporated on 12 October 2014.

On 16 September 2014 the Deputy of Grouville lodged P.149/2014 to extend the Law to:

(i) Andium Homes, the States of Jersey Development Company, Jersey Post, Jersey Telecom and all other companies wholly owned by the States. 

P.149-2014 Freedom of Information- extension to companies owned or controlled by the States [DeputyofGrouville] (gov.je)

This was debated in the States Assembly on 25 November 2014 at point 9.

Hansard (gov.je)

The Chief Minister responded to Questions in the States Assembly as follows: 

23 February 2016;

dep c labey to cm re foi legislation for states owned companies.pdf (gov.je)

17 January 2017:

(1) dep grouville to cm re progress of foi law to states owned companies.pdf (gov.je)

18 July 2017:

(396) dep grouville to cm re freedom of information law for states owned companies.pdf (gov.je)

11 December 2017:

(640) dep grouville to cm re the implementation of p.1492014.pdf (gov.je)

The Ports of Jersey, along with a number of independent statutory regulators, do fall within the meaning of the term “an administration of the States” as defined in Article 1 of the Freedom of Information (Jersey) Law 2011 as follows:

“administration of the States” means –

(a)     a department established on behalf of the States; and

(b)     a body, office or unit of administration, established on behalf of the States (including under an enactment);

Ports of Jersey is a body established by an enactment and therefore falls within (b) of this definition.

In the definition of “public authority” in Article 1 of the Law, the public authorities that are an “administration of the States” are referred to as a distinct type of public body from the bodies established by a resolution of the Assembly or under Standing Orders. 

Under the Law, paragraph (4) of Schedule 1 makes it clear that a subset of that group, namely the Government Departments established on behalf of the States, were scheduled public authorities.  The effect of the Law is that Ports of Jersey and other bodies, offices and units of administration established by an enactment are public authorities that are capable of being added to Schedule 1, including using the power to amend that Schedule in Article 6 of Law,  however they are not covered by Schedule 1 unless so added (this is illustrated by the addition of the Children Commissioner to Schedule 1 when that office was established). 

Schedule 2 of the Law applies to “Scheduled Public Authorities” as opposed to public authorities.

No central file is held relating to the extension of the Law by the Government of Jersey.  It has been estimated that to establish which Officers have been involved over the past 11 years and may hold related information; and to extract any information would exceed the timescales prescribed in the Freedom of Information (Costs) (Jersey) Regulations 2014. Article 16 of the Freedom of Information (Jersey) Law 2011 has been applied. 

Article applied 

Article 16 - A scheduled public authority may refuse to supply information if cost excessive

(1) A scheduled public authority that has been requested to supply information may refuse to supply the information if it estimates that the cost of doing so would exceed an amount determined in the manner prescribed by Regulations. 

(2) Despite paragraph (1), a scheduled public authority may still supply the information requested on payment to it of a fee determined by the authority in the manner prescribed by Regulations for the purposes of this Article.

(3) Regulations may provide that, in such circumstances as the Regulations prescribe, if two or more requests for information are made to a scheduled public authority –

(a) by one person; or

(b) by different persons who appear to the scheduled public authority to be acting in concert or in pursuance of a campaign, the estimated cost of complying with any of the requests is to be taken to be the estimated total cost of complying with all of them.