Deputy Gavin St Pier gives detailed update on API

Deputy St Pier sends email to States Members regarding the Review of the Policy and Code of Practice for Access to Public Information

Dear States Members,

Review of the Policy and Code of Practice for Access to Public Information

Further to the meeting of the Policy & Resources Committee on 14 February 2017, I am updating you on our decisions with regard to the further development of the Code of Practice for Access to Public Information.

At its meeting on 31 July 2013, the States of Deliberation agreed to implement a States of Guernsey Policy and a Code of Practice for Access to Public Information ("the code"). The Policy Council was directed to report back to the States of Deliberation:

• Setting out an assessment of an appeals mechanism
• Providing a review of the effectiveness of the code
• Evaluating the feasibility of a "thirty-year rule"

While resources prevented the Policy Council from reporting back in the time it was directed to, it did oversee a number of steps being put in place to further improve government transparency on information, which have been continued by the Policy & Resources Committee. The Policy & Resources Committee has now formally evaluated the code and is recommending changes to the administration of the code of practice and not the code itself.  Once these changes have been evaluated, should any changes to the code then be required, a policy letter would be laid before the States for consideration.

1. Effectiveness of the code

Use of the code - requests and responses

The policy behind the implementation of the code was to support and encourage more transparency and to establish a set of guiding principles for the publication of government information.  It was emphasised in the 2013 States Report that there are times where there is a need to balance the importance of open government with the need to maintain confidentiality and to continue to supply essential services. 

It is important to recognise that the code is not, and was never meant to be, a standalone solution. The code's purpose is to establish a consistent standard for the disclosure of public information, and to ensure that there is a clear and standardised set of principles for the public explaining the government information that they are able to access and the process by which they can access that information.  It is one component of an overall drive to increase open government and transparency. Complementing this work is the development of a standardised system for information retention and retrieval.

When the code was approved by the States of Deliberation, it was agreed that it would be important to review the effectiveness of the code and the States resolved "to direct the Policy Council to report back to the States during quarter 1 of 2015 with a report evaluating the effectiveness of the Code of Practice and recommending any changes it considers appropriate; that report to include details of all information requests which have been refused, providing the reason for the refusal, and under which part of the Code the refusal was made."

A total of 49 requests were submitted under the code between 2014 and 2016.  Table one breaks these requests down showing the number of requests received and refused between 2014 and 2016.

Table 1: Total number of requests received and refused

These figures do not include all instances where:

• A request under the code is also received as a media request - in these cases the requestor has been contacted and the request has typically been withdrawn so that it could be dealt with through the usual channels.
• Catch-all requests to UK Government authorities under the UK's Freedom of Information Law - in these cases a response was sent informing the requestor that Guernsey was not part of the UK and to suggest the request could be re-submitted under the code - these requests were not usually re-submitted. 
• Where the information requested was readily available on the website, or already in the public domain.

The instances above were not taken into account in order to demonstrate where the code was used as the sole tool available to someone to obtain information from the government.   Overall the figures demonstrate that there are a relatively small number of requests received on an annual basis under the code.

There was one complaint in 2014 under the code where a request was initially refused by the Policy Council. The requestor then submitted a complaint to the Chief Executive with a request to review the decision, which was then put to the Policy Council. The review took into account the treatment of similar information by the UK and applied a comprehensive public interest test.  Although the response was delayed under exception 2.10 (publication and prematurity in relation to publication), the information requested was released last year with agreement from the Policy Council.

Table two sets out in full the requests that were refused and the reasons for refusal using an exception under the Code of Practice. 

Table 2: Details of requests refused

In addition to the full request refusals outlined above, there were also requests that received a partial refusal under the code but all other information was provided.  The reasons for refusal centre on the need to balance the importance of open government with the need to maintain confidentiality and to continue to supply essential services, as set out in the 2013 States' Report.  On balance, there are a comparatively small number of requests that are refused. 

Out of the total requests received between 2014 and 2016 are broken down by requestor types in table three below. 

Table 3: Number of requests received broken down into requestor type

Table three shows that the majority of initial requests were received by the media.  During 2016, the media were actively encouraged to use the code only if a media request was rejected.  The statistics show that the media have recognised that submitting a media request and request under the code concurrently was not a good use of States' resources and have voluntarily withdrawn submissions.  There was a marked increase in the number of requests received from individuals but it is not clear whether there was a specific reason for the increased number of requests, in particular in November and December 2016. 

Taken together, the three tables above suggest two possibilities:

• That although the code is utilised, there are a low number of requests, as the general public is able to find information by contacting the States or by finding it publically. 
• There is a lack of general awareness of the code itself and action may need to be taken to publicise it more widely.

Other changes to improve transparency across the States of Guernsey

Since the submission of the original States Report on the code, there have been a number of significant changes in both the working practice and culture of the States of Guernsey with regard to the treatment of government information. 

Following the recommendations of an internal audit report, the establishment of the Corporate Communications team from 2013 onwards has worked to release information in a more understandable way for the general public, and helped instil a more pro-active approach in releasing information from government.  The team has modernised the website, making sure it is accessible, and moved to put all consultations and reports in one place on the website.  The team has also started to create more of a responsive social media presence for the States of Guernsey, again, making sure information is more easily available for a wider group of people. 

The appointment of a Chief Information Officer in 2014 with a primary aim of transforming the way that the States manages its information and shares it with the general public was a significant step.  The change in government in 2016 also provided an opportunity to bring together services that deal with information and technology to report into the Chief Information Officer, allowing a more unified and strategic approach to the provision and treatment of government information. The re-defined role of the Data & Analysis team, working to the Chief Information Officer, and the introduction of the e-census has enabled the publication of a wider range of information.

The implementation of the SAP system has made it simpler to collect information internally and use that for external purposes.  A document management system is now in place at St James Chambers and the Office of the Committee for Home Affairs has put in place its own document management system and there is now consideration of whether this could be used as a test case for a potential rollout across the public sector. Many service areas are now implementing a basic level of document management retention and destruction with particular emphasis on clarity around the disposal or transfer to the archive of aged documents. 

In general, the culture has changed significantly, and it is now standard practice to release information on the costs of independent reports, travel and legal cases on a proactive basis.

Resources

Although costs associated with operating the code have been absorbed by service areas and Committees, there has been a lack of dedicated resources to dealing with requests for information centrally.  The additional workload has been absorbed into the External Relations team's ongoing work and includes: providing advice; maintaining a central database; dealing with complex queries; following up responses; being a point of contact for requestors; and publishing information online.  The External Relations team took up this role to fill a vacuum and also because of their experience.  With the appointment of the CIO this role will now pass to his team.  In addition, in order to further drive a drive consistency, transparency and the presumption of publication, the CIO will review all API decisions where an exemption is applied prior to its release.

The workload can be maintained at its current level but if there is a substantial increase in the number of requests or requirements in the application of the code, there may be need to be a review of where this work sits within the States, and how it is resourced and funded.  Certainly if the decision were taken to introduce a statutory obligation to provide information, a business case would need to be put forward for this work and, taking evidence from other Crown Dependencies, the cost is likely to be significant. 

Improving the effectiveness of the code

It was recognised in the 2013 States Report that the code "should continue to evolve as the guiding principles of access to information become firmly established in the States of Guernsey"[1].  It has now been over two years since the code has been put in place, which has allowed time to consider how its operation could be improved.  The Policy & Resources Committee has agreed three steps which it believes are proportionate and appropriate:

1. Publish questions and responses to Access to Public Information requests - There are a number of benefits in publishing questions and answers under the code.  First it would increase transparency regarding the implementation of the code; secondly it would provide an opportunity to clearly explain why any requests were being refused; and thirdly a system could be implemented using existing resources.  This option could have the added advantage of promoting general awareness of the code.  There may need to be exceptions to publish, for example where there are requests for personal data and if this option is taken forward, the requestor's details could be anonymised, in accordance with other information regimes.  In view of the number of requests currently received, this work could be absorbed using current resources.  However should the number of requests increase substantially, resources will need to be reviewed.
2. Promote awareness of the code across the public service - It is not clear that the obligations under the code are clearly recognised by those working for the public service.  Promoting more awareness of the code amongst staff, for example as part of the induction process or as part of training sessions, would ensure that staff recognise that their reports or memorandums have the potential to be released publically.  Work to promote awareness among staff could be done using existing resources and would need to be taken forward with the Corporate Communications team.
3. Promote awareness of the code with the general public - Figures show that there is a low number of individuals utilising the code.  Promoting awareness of the code would demonstrate that it was a tool that was taken seriously and that the States recognise its obligations under the code. Work to promote awareness among the general public could be done using existing resources and would need to be taken forward with the Corporate Communications team.

2. Appeals process

Following a successful amendment by Deputy Green, it was agreed by the States of Deliberation that "by no later than July, 2014 the Policy Council report to the States of Deliberation setting out their assessment of the feasibility, desirability and potential cost of providing a right of appeal to an independent person or persons in respect of a request made for access to information which is refused by a States Department or Committee."

Unfortunately, given the pressure on resources within the Policy Council it was not possible to finalise the report in time for the July States' meeting, as communicated to the States of Deliberation on 28 May 2014 by the Chief Minister.  There has been one complaint under the Code which provided an opportunity to test a system for reviewing any requests under the Code and as a result two options were considered by the Policy & Resources Committee - making referrals to the Data Protection Commissioner, and retaining the status quo.

The Policy Council and the Policy & Resources Committee have both considered the pros and cons of appeals being referred to the Data Protection Commissioner for independent advice as to the correct application of exceptions.  Under this model, the Data Protection Commissioner's opinion would then be published but would not be binding on the Committees, meaning the final decision remains in their control. That reflects the need for a 'ministerial' veto, as in other jurisdictions, where the final decision will impact upon government and has political considerations.  This raises the threshold at which the 'veto' is applied. If given such a role, officials from the Data Protection Commission indicated in 2014, they would want to actively promote the rights under the Code and train their officers on applying the code. 

The Office of the Data Protection Commission made an initial estimate in 2014 that training and costs associated with the promotion of the code would be £1,500 per annum.  The contribution required in relation to increased responsibilities and staff time taken up with the code was, at the time, unclear and would require further consideration.

While this action would ensure that an independent office scrutinised the papers in order to assess whether they should be released and would build upon existing administrative structures, as there has only been one request to appeal since the implementation of the code in early 2014, this option does not provide the best value for money.  Further, since that dialogue with the Data Protection Commission, the EU's General Data Protection Regulation regime has been agreed.  In the Policy & Resource Committee's view, the Data Protection Commission's limited resources must not be distracted from the jurisdiction's higher priority of ensuring Guernsey's data protection regime obtains the requisite 'equivalence' status.

Under the current system, any requestor dissatisfied with a response under the code can make a complaint in writing to the Chief Secretary or Principal Officer of the Committee.  The matter may then be referred to the Committee concerned and, where appropriate, the Committee may refer the matter to the Policy & Resources Committee for consideration.  There has been only one complaint under the Code in two years and the complaint was dealt with by applying a public interest test.  Although the response was delayed using exception 2.10 (publication and prematurity in relation to publication), the information requested was published in January 2016.  A potential improvement could be to make it clear as part of each response under the code that a requestor is able to appeal.

The Policy & Resources Committee's view was this remained a proportionate response given the data in relation both to the overall number of requests made and to the number of appeals. While no action might invite criticism and be implied to mean that the code is a blunt instrument, the Policy & Resources Committee's view is that the position can be reappraised in the future, if there are a greater number of appeals.

3. "Thirty year rule"

Following a successful amendment by Deputy Hadley, it was agreed by the States of Deliberation "to direct the Policy Council to report back to the States during quarter 1 of 2015 with a report evaluating the feasibility and implications of expanding the Code of Practice to include automatic disclosure rules similar to the UK '30 year Rule'."

The "thirty year rule" refers to the UK Public Records Act 1958 (or similar) where records are made available to the National Archives for public inspection by the time they are 30 years old[2]. There are still some records that for the purposes of security or data protection purposes are not released; however individuals can still submit a freedom of information request for particular documents that have not been made available for review by government. The Public Records (Jersey) Law 2002 provides for a similar regime in Jersey and the records are managed by Jersey Archive (part of Jersey Heritage). 

Island Archives preserves public and private records of the Bailiwick of Guernsey.  The manner in which services across the States of Guernsey sends records to Island Archives is disparate and void of any corporate policy.  It would therefore be difficult retrospectively to fit any rule in place as each document would need to be reviewed to ensure there were no data protection problems in releasing information or any other details that would need to remain confidential. 

There is a draft Document Management, Retention and Destruction Policy that includes concepts such as the seven- and thirty-year rule similar to those employed in other jurisdictions.  While the policy in general has been accepted, the implementation of a policy has significant resource implications, especially if this were to be applied retrospectively.  The forthcoming policy letter regarding data protection (the alignment with the EU General Data Protection Regulation) is likely to require the adoption of a document management policy if the States of Guernsey are to comply with the personal data aspects of data protection. 

4. Freedom of Information Law

The implementation of a Freedom of Information Law would introduce statutory rights of access to government information by the public.  However, in view of the evidence presented through the enactment of the code it does not seem that the implementation of a Freedom of Information Law at this time is proportionate.

There are currently a low number of requests with a minimal number of refusals.  If there is a substantial increase in the number of requests, that may give more of an indication as to whether Guernsey is in a position to put a Freedom of Information Law in place. 

There is still a significant amount to do in the area of document management policy, not just to enable the accurate recovery of data for requests under the code or similar but to reduce staff time in meeting these requests or carrying out normal routine duties.  Without an effective document management process, the establishment of a Freedom of Information Law along the lines of the Jersey, Isle of Man or UK law is not manageable and indeed in some cases is already restricting other legal requests for information, such as under the Data Protection (Bailiwick of Guernsey) Law 2001.  As outlined above, the work is ongoing to implement a system across the States of Guernsey.

It is recommended at this time that the implementation of a statutory freedom of information regime is not proportionate considering the current level of requests and resources that would be required to put such a statutory regime in place.

In summary, in reaching its conclusions, I wish to assure you that the Policy & Resources Committee have carefully considered the experience of the code's operation to date, the resources available and competing priorities in order to determine a regime which we believe to be proportionate and appropriate for the island's needs at the present time.

Yours sincerely,

Deputy Gavin St Pier

President

Share this page