Full Tender document (FOI)Full Tender document (FOI)
Produced by the Freedom of Information officeAuthored by Government of Jersey and published on
22 January 2025.Prepared internally, no external costs.
Request 674042396
It would be appreciated if you could make available the full tender document as raised by the Government for ferry services to and from the Island of Jersey. This document is therefore not the one for ferry services to Guernsey and Jersey. It is expected that the document will include details of the number of sailings to the UK and to France, the passenger capacity of the vessels and the type of vessel. Also details of the freight capacity of the vessels as sought by the Government are requested. No details of any relevance to the commercial or to the financial aspects are sought by the applicant, and if any of such detail is contained in the Tender document it may be obscured.
Response
The requested information is exempt under Articles 33 and 34 of the Freedom of Information (Jersey) Law 2011
Articles applied
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 prejudice-based exemption. That means that to engage this exemption there must be a likelihood that disclosure would cause prejudice to the interest that the exemption protects. In addition, this is a qualified exemption, and consideration must be given to the public interest in maintaining the exemption.
The Scheduled Public Authority (SPA) considers that providing information could prejudice the commercial interests of the Government of Jersey and / or third parties. There may be public interest in the commercial information, however it was considered that this is outweighed by the potential for commercial and or financial damage.
Article 34 - The economy
Information is qualified exempt information if its disclosure would, or would be likely to, prejudice –
(a) the economic interests of Jersey; or
(b) the financial interests of the States of Jersey.
Public Interest Test
Article 34 is a qualified exemption which requires there to be a likelihood of prejudice against the economic interests of Jersey or the financial interests of the States of Jersey. Whilst this could include reputational concerns, the larger concern is whether the economic interests of the Government of Jersey could be prejudiced by the release of information that could undermine Jersey's reputation.
The following extract from the guidance of the UK Information Commissioner should also be noted:
The exemption concerns the effect on the economy rather than the government's ability to manage the economy. However, since it is an aim of governments to improve economic prosperity, weakening the government's control over the economy may also damage the economy itself.
Public interest would not be served by disclosing information which may have a detrimental impact on the economy.
Internal Review Request
This email serves as a request for an internal review in the matter of the FOI request number 674042396 for the disclosure of the Tender for ferry services.
The applicant is of the view that the position advanced by the Government of Jersey is manifestly in error. In particular:
1. The notion advanced that Article 33 does apply. The tender document was raised by the Government on the basis that a minimum level of sailings was sought both to and from the UK and to and from France. In doing so the Government sought to ensure that the Island is served by an adequate number of sailings and an adequate passenger and freight capacity. Furthermore, this minimum requirement is embodied in a sole operator agreement, in other words a monopoly. In the view of the applicant the Island persons and the Island businesses and entities have the right to learn about the minimum number of sailings for both passengers and freight to be provided by the successful operator. Apart from the event that the Government or its agencies do utilise the service as a paying customer of the operator, the Island person, the Island businesses and Island entities are paying customers of the operator when they use the services. This fact must strengthen their right to learn about the minimum service level.
In the view of the applicant the knowledge does not constitute a trade secret. Furthermore it is the view of the applicant the disclosure of the tender document does not prejudice the commercial interest of any party or person, including that of the successful operator, or that of the Government of Jersey.
2. The notion advanced that Article 34 does apply. The tender document was raised by the Government in order to ensure that the Island is served by an adequate number of sailings in order to create certainty to its users. As stated above, the users pay the fares or charges set by the successful operator. In the actual payment transactions the Government does not play any role.
In the view of the applicant the economic interests of Jersey are not prejudiced by the knowledge of the minimum number of sailings and level of capacity sought. On the contrary, the knowledge of the minimum level of service by the users will benefit the economy since it provides certainty. Furthermore, the financial interests of the States of Jersey cannot be prejudiced since the States of Jersey do not pay the fares or charges incurred by the users of the service.
Finally, it is of concern to find that the Government of Jersey seeks to prevent the knowledge of the Tender document. The Government's function is to serve the Public.
There is no objection to this appeal being published, or made public in any manner, however only in a fully unabridged form.
Internal Review response
An Internal review was completed by an official of appropriate seniority who has not been involved in the original decision.
They were asked to consider:
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.
If yes, then the Panel reviewed.
i. Was the right information searched for and reviewed?
ii. Was the information supplied appropriately
iii. Was information appropriately withheld in accordance with the articles applied and were the public interest test/ prejudice test properly applied
Following the internal review process, the original response was upheld but with the following amendment
Panels decision however is that although these articles were correctly applied, the wrong SPA was allocated the FOI. The panel have requested that the FOI now be redirected to Commercial so that a response can be supplied by the correct SPA.