Medical advice supplied to Chief Minster

Summary

A request was made for medical advice used by the Chief Minister to justify excluding Manx residents from returning to the Isle of Man during the pandemic. The Cabinet Office withheld all information, citing exemptions related to the formulation of government policy during an ongoing emergency.

Key Facts

• The request was received on 1 April 2020 and the response was issued on 28 April 2020.
• The information was withheld under Section 34 of the Freedom of Information Act regarding the formulation of policy.
• The authority argued that disclosure would inhibit free and frank discussion necessary for emergency decision-making.
• The exemption is qualified and subject to a public interest test, which favored withholding the information.
• The Cabinet Office stated the policy formulation was still ongoing at the time of the request.

Data Disclosed

• 1 April 2020
• 28 April 2020
• 2020-04-29
• 1256182
• Section 34
• Emergency Powers Act 1936

Exemptions Cited

• Section 34 - Formulation of policy

Original Request

In Tynwald yesterday the Chief Minster justified the exclusion of Manx Residents from returning to the IOM on the basis of medical advice. Given the seriousness and potential consequences of this measure, I would wish to see what medical advice guided the decision to exclude returning Manx residents

Data Tables (1)

Full Response Text

Government Office Douglas Isle of Man IM1 3PN Telephone: (+44) 01624 686244 Website: www.gov.im/co

Our ref: 1256182 28 April 2020

Dear ###

We write further to your request which was received on 1 April 2020 and which states:

"In Tynwald yesterday the Chief Minster justified the exclusion of Manx Residents from returning to the IOM on the basis of medical advice. Given the seriousness and potential consequences of this measure, I would wish to see what medical advice guided the decision to exclude returning Manx residents" While our aim is to provide information whenever possible, in this instance the following exemption under the Act have been engaged: • Section 34 - Formulation of policy Section 34 - Formulation of policy s34 is a class based qualified exemption and cannot be engaged unless the information concerned falls within the class of information described by the exemption. In this case the qualified exemption has been engaged under s34(1)(a), as the information which is the subject of the request relates to the formulation or development of government policy and is therefore exempt from disclosure. Although some of the policy formulation has been concluded in the completion of certain emergency regulations made pursuant to the Emergency Powers Act 1936, it is considered that this request is timed at a stage where relevant development of policy is still being formed and developed. This policy formulation continues during the response to Covid-19 and weighs in favour of withholding of the information at this time.
We will continue to review the policy formulation, and if the qualified exemption under s34 no longer applies the information can be provided. Release at the appropriate point in time will enable individual policy decisions, such as this, to be understood in the wider context of the overall policy response, rather than viewed in isolation, and their collective contribution to achieving the fundamental strategic objectives which underpin all policy decisions made in response to COVID-19 emergency to be better understood.

In assessing each of the factors in favour of disclosing the information or maintaining the exemption the Cabinet Office has taken the following into consideration: • Effective policy formulation and decision making, in this case policy in respect of the overall emergency response to COVID-19, which requires the consideration of a wide range of options and the ability to discuss matters without compromising or limiting free and frank discussion. Allowing this to happen within a safe space where matters can be discussed, free from exposure to public view and debate, is imperative. This is particularly important during a national emergency. • The assessment of options, along with the associated risks and benefits, without the potential for disclosure, is imperative to ensure free and frank discussion and that deliberations are not prejudiced. Disclosure at this stage may undermine the public interest in Government decisions being based on the open and transparent provision of advice and information. • Disclosure of any information in respect a decision may result in public debate which can then make it difficult to consider options objectively. It may also inhibit the provision of free and frank discussions between officers which can impact the quality of the advice and in turn affect the decision making process. This is particularly important when the matter being considered is live. This is of course currently the case as policy decisions in respect of the emergency response continue to be made. As this is a qualified exemption it is subject to a public interest test. The Cabinet Office has considered the factors in favour of maintaining the exemption and the factors in favour of disclosing the information. Factors in favour of disclosure There's a public interest in disclosing factual information used to provide an informed back-ground to decision taking. Significant public interest in allowing public scrutiny of the details of the policy while the policy is still in the public consciousness. If it contains factual information about the background to the policy there is particular public interest in disclosing background factual information.

Factors in favour of withholding For Cabinet minutes the public interest in preserving collective responsibility is always substantial and the disclosure is rarely ordered. Protecting ministerial discussions and collective decision making processes preserve a safe space for ministers to debate live issues away from external interference and distraction. To prevent a chilling effect on free and frank ministerial debate in future Protecting ministerial unity and effectiveness.

Public exposure of the information may compromise candid and robust discussions about policy, the exploration of extreme options, the keeping of detailed records and the taking of hard choices, where it might prejudice good working relationships, the neutrality of civil servants and ultimately the quality of government. The potential damage to policy making from the content of the specific information and the timing of the request. The need to maintain the quality of government policy making by facilitating free and frank exchanges between civil servants ('the chilling effect' and the thorough consideration of all policy options, however extreme, without inducing the need to defend them ('safe space'). The policy is live. To protect the deliberative process and provide a safe space to protect information in the early stages of policy formulation and development. The fact that the particular circumstances of the case indicate that public participation in the policy is inappropriate.

The Cabinet Office, having considered the exemptions and assessed the weighting of the public interest, including the risk of harm from disclosure, has concluded that the public interest in maintaining the exemption outweighs any benefit that could be gained by the general public by the information being disclosed at this time. Once the proclamation of emergency has expired and any relevant regulations related to the COVID-19 response are lifted, the information being requested is likely to be released since the information will no longer be qualified exempt.

Please quote the reference number 1256182 in any future communications.

Your right to request a review

If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post.

An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review . If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.

If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on; 1. Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or

1. Whether we are justified in refusing to give you the information requested.
   In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi.

I will now close your request as of this date.

Yours sincerely