St Peter Sewage Tank

Internal Review Request

I hereby request an Internal Review under Article 46 of the Freedom of Information (Jersey) Law 2011.

The response I received to my FOI request concerning the St Peter stormwater/foul-water attenuation tank project is, in several material respects, incomplete, incorrect, or based on misapplied exemptions.

This review request sets out the specific grounds on which reconsideration is sought.

1. Misapplication of Article 35 (Formulation and Development of Policy)

The response claims that the project remains “a policy in development,” and therefore information may be withheld under Article 35. 

This is factually incorrect.

• Planning permission has been granted.

• Tenders have been issued and evaluated (confirmed publicly by officials).

• Construction work has commenced on site.

• The project forms part of a funded programme and enabling works have been announced.

A policy cannot simultaneously be in development and in execution. Once decisions have been taken and implementation has begun, Article 35 no longer applies.

Ground for review: The exemption was incorrectly applied and should be overturned.

2. Implausible Assertions that Key Information is “Not Held”

The response repeatedly states that cost estimates, tender values, risk assessments, odour-control specifications, contingency sums, and alternative design options are “not held”.

For a capital project of this scale—already tendered, costed, consented and commenced—this is not credible.

Under Article 3 of the FOI Law, information held by consultants, engineers or contractors on behalf of the authority is treated as information held by the public authority.

The following categories of information must necessarily exist:

• Budget envelopes and cost estimates

• Tender evaluation documents

• Risk assessments and/or method statements

• Odour-control design assumptions

• Internal submissions or reports

• Planning-condition compliance documentation

• Project options appraisals

• Hazard and safety assessments

• Costed contingencies and allowances

Ground for review: The “information not held” response is factually implausible and incompatible with procurement, health-and-safety and project-management obligations.

3. Failure to Comply with the Duty to Advise and Assist

The response did not provide:

• high-level budgets,

• banded or indicative cost ranges,

• identification of the categories of information held,

• or partial disclosure where only some information might be exempt.

This contravenes the duty under the FOI Law and the Code of Practice to be “as helpful as possible” to applicants.

Ground for review: The authority failed in its statutory duty to advise and assist.

4. Over-broad and Unsupported Reliance on Article 33(b) (Commercial Interests)

If Article 33(b) was relied upon to withhold all cost-related material, such reliance is:

• excessive,

• not justified on the facts, and

• inconsistent with previous disclosures for comparable odour-control and drainage infrastructure projects (e.g., Pontac, Le Hocq, Le Bourg, Fort Regent).

Article 33(b) requires a specific, demonstrated likelihood of prejudice to a particular third party. The response provided no specific justification, and withholding the entire cost envelope is disproportionate.

Ground for review: Article 33(b) was applied far beyond what the law allows.

5. Omission of Material Elements of the Request

The response failed to acknowledge or address:

• odour-control systems,

• gas-hazard risk assessments,

• cleaning/maintenance systems,

• groundwater-risk reports,

• the presence of methane or hydrogen sulphide risks, and

• the planning, design and safety obligations inherent in a deep sewage-retention asset.

These elements are integral to the project and were specifically requested. Material omissions constitute a defective FOI response.

Ground for review: Failure to respond fully to the request.

6. Strong Public Interest in Transparency

This project involves:

• significant public expenditure (potentially tens of millions of pounds),

• acknowledged safety risks (including explosive/asphyxiating gases),

• impacts on nearby residents,

• infrastructure intended to facilitate private development, and

• possible absence of a Ministerial Decision authorising the spend.

The public interest in disclosure is therefore overwhelming, and greater than any possible commercial sensitivity.

Ground for review: Public interest test improperly applied or not considered.

7. Inconsistencies with the Public Finances (Jersey) Law

The FOI response appears to obscure whether statutory requirements were met, including:

• ministerial approval for high-value expenditure,

• costed business cases,

• value-for-money assessments,

• risk-priced contingencies,

• documented risk registers.

FOI exemptions cannot be used to conceal information that may relate to improper financial governance.

Ground for review: Withholding prevents legitimate scrutiny of statutory compliance and therefore undermines the purpose of the FOI Law.

I request that the Internal Review:

1. Re-examines all withheld information with proper application of the law.

2. Confirms precisely which documents exist, where they are held, and under what basis any exemption is applied.

3. Discloses all information incorrectly withheld, particularly cost data, risk assessments, odour-control specifications, and ministerial approvals.

4. Provides a full explanation where any information continues to be withheld, including a detailed public-interest test.

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?

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 discussion, it was agreed by the Panel that the original decision be partially overturned in relation to the to the questions detailed below

Q1The panel agreed that costs and contingencies for the proposed 6.1 Million Litre Sewage Attenuation Tank in Rue de St Clement, St Peter, are exempt under Article 33(b) (Commercial Interests) of the Freedom of Information (Jersey) Law 2011 as these are considered commercially sensitive.

Q4 and Q5

Regarding cost of enlarging the Sewage/Sewer network island-wide and current engineering drawings for the Tank and associated Development are exempt under Article 33(b) (Commercial Interests) of the Freedom of Information (Jersey) Law 2011 as these are considered commercially sensitive.

Article applied

Article 33 (b) - 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 considerations favouring disclosure

• Disclosure of requested information would ensure the general public are informed about the contingency costs and tender information in relation to this project.

• Disclosure of the information would support transparency and promote accountability to the general public.

• Disclosure would also promote trust in the Scheduled Public Authority (SPA) by showing openness.

Public interest considerations favouring withholding the information

• The disclosure of the contingency costs, tender information, cost of enlarging the Sewage/Sewer network island-wide and current engineering drawings for the Tank and associated Development could potentially disadvantage the contractors and the SPA’s ability to retain commercial advantage in any future tender process.

• This could also result in the SPA’s inability to secure best value for the taxpayer and this will likely prejudice the SPA as its bargaining power decreases.

• This could undermine the integrity of the recent tendering process the contractors as the information could reveal pricing and service structures that were part of a competitive bid.

• The disclosure of contingency costs, tender information and cost of enlarging the Sewage/Sewer network island-wide may result in misinformed public debate, therefore, this could jeopardise the business relationship between the SPA and Contractor which is essential for the successful delivery of services under the newly awarded contract. Trust and confidentiality are key components of effective commercial relationships, and disclosure of sensitive financial data could erode that trust.

Considering all considerations, while transparency and accountability is important, the public interest in disclosure must be weighed against potential harm caused by prejudice of the commercial interests and the risks of misinformation.

The SPA has concluded that, on balance, the risk of causing harm caused by prejudice of the commercial interests and or concerns or spreading misinformation, the public interest in maintaining the exemption outweighs the benefits disclosing the information.​