Steam Packet purchase

Summary

A request was made for all papers, minutes, and notes regarding the Council of Ministers' consideration of the acquisition of the Isle of Man Steam Packet Company. The authority partially upheld the request, releasing several documents while redacting personal data and information related to live policy formulation.

Key Facts

• The request was received on 2018-06-26 and the outcome was determined on 2018-10-26.
• Documents released include CoMin Papers from the Department of Infrastructure and Treasury, though some were redacted.
• Handwritten notes of the Head of Executive Office and Council of Ministers Administration Executive were withheld in their entirety.
• Personal information of non-senior civil servants was redacted under data protection exemptions.
• Information regarding future policy options for the Steam Packet Company was withheld to protect the deliberation process.

Data Disclosed

• 2018-06-26
• 2018-10-26
• 12 September 2018
• 515433
• 17/190
• 488/17
• 17/172
• 445/17
• 17/316
• 810/17
• 18/056
• 136/18
• 18/129
• 319/18
• S25(b)(i)
• s34(1)(b)(i)
• Article 5
• 7 pages
• 1 document

Exemptions Cited

• S25(b)(i) – Absolutely Exempt Personal Information
• s34(1)(b)(i) – Formulation of policy
• Data Protection (Application of GDPR) Order 2018
• Article 5 of the General Data Protection Regulation

Original Request

In respect to events that played out in the Keys on 26/06/18. I seek the publication of all papers, minutes and notes relating to the Council of Ministers' consideration of the acquisition of the Steam Packet Company?

Data Tables (1)

Full Response Text

1

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

Our ref: 515433 12 September 2018

Dear ###

We write further to your request which was received on 26 June 2018 and which states:

"In respect to events that played out in the Keys on 26/06/18. I seek the publication of all papers, minutes and notes relating to the Council of Ministers' consideration of the acquisition of the Steam Packet Company?"

Our response to your request is as follows: We have considered the following documents in relation to your request: Department Document Type Redactions Applied? CoMin Minute Ref Redactions Applied? Dept of Infrastructure CoMin Paper No. 17/190 Yes – out of scope of request 488/17 No Treasury CoMin Paper No. 17/172 No 445/17 No Treasury CoMin Paper No. 17/316 Yes 810/17 No Treasury CoMin Paper No. 18/056 Yes 136/18 No Treasury CoMin Paper No. 18/129 Yes 319/18 Yes Treasury Non-Disclosure Agreement Yes N/A N/A Cabinet Office CoMin Meetings - Handwritten Notes of the Head of Executive Office and Council of Ministers Administration Executive Yes (in entirety) N/A N/A Please note the Council of Ministers Minutes have been provided as extracts within a separate document, attached. Redactions have been applied in accordance with the engagement of the following exemptions, referenced accordingly: 2 S25(b)(i) – Absolutely Exempt Personal Information Whilst our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because it is absolutely exempt under section 25 of the Freedom of Information Act 2015 (“the Act”). The reasons why that exemption applies are that: • The Cabinet Office is satisfied that the information amounts to personal data of which you are not the data subject; and • The Cabinet Office is satisfied that disclosure of the information would contravene one of the data protection principles as set out at Article 5 of the General Data Protection Regulation as it applies in the Isle of Man pursuant to the Data Protection (Application of GDPR) Order 2018, namely that the Cabinet Office can only disclose the information where it would be fair, lawful and meet one of the conditions for lawful processing and in this case, none of those conditions have been met. You have requested information relating to papers, minutes and notes presented to the Council of Ministers (“CoMin”) in relation to the consideration of the acquisition of the Isle of Man Steam Packet Company (“IoMSPCo”). Contained within this information are the names of individuals who have provided advice. The names of senior civil servants have been provided. This is because there is a reasonable expectation that their names will be published in relation to the advice they have provided. Therefore, it is considered fair and lawful to publish the same in response to this request and this exemption has not been considered further. The personal information of certain other individuals, other than senior civil servants, has not been disclosed. This is because such disclosure would breach article 5(1)(a) of the General Data Protection Regulation (“GDPR”) "lawfulness, fairness and transparency" and therefore section 25 (2)(b)(i) of the Act is engaged in respect of their personal information.

s34(1)(b)(i) – Formulation of policy Whilst our aim is to provide information whenever possible, in some instances information is exempt from disclosure under section 34 of the Act as it is held by a Government Department and it relates to the formulation or development of government policy. In respect of this request, this is specifically in relation to the future policy options concerning the operation of the IoMSPCo. As section 34 is a qualified exemption, it is subject to a public interest test. The public interest must be something that is of serious concern and benefit to the public at large. Factors in favour of disclosure • Disclosing information about the range of future policy options, considered by CoMin in respect of the commercial operation of the IoMSPCo would build public confidence in the thoroughness of the process undertaken by CoMin in this instance; • Significant public interest in allowing public scrutiny of the details of the policy while the policy is still in the public consciousness; and 3 • Information disclosed prior to a decision being taken will facilitate more informed public debate. This is particularly relevant in this case as there will usually be a strong public interest in favour of disclosure where a policy decision is going to lead to large-scale public expenditure.

Factors in favour of withholding • The policy decision making process is currently live; • The disclosure of the information would be likely to prejudice the deliberation and decision making process as a result of lobbying of those Ministers in CoMin taking part in those deliberations. In particular, it is likely that those who may be implicated by the policy options may attempt to influence the policy direction; • The need to preserve a safe space for Ministers to debate live issues away from external interference and distraction; and • 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").

In taking these factors into account the Cabinet Office determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information. S35(a) and s35(b)(i) – Conduct of Public Business Whilst our aim is to provide information whenever possible, in some instances information is exempt under section 35 of the Act, as disclosure would be likely to inhibit the free and frank provision of advice to and prejudice the work of CoMin.
Officers of Government must have a ‘safe space’ in which they can make comments and provide advice to CoMin on matters of national importance particularly where CoMin is responsible for making significant policy decisions on those matters. It is the Cabinet Office’s view that encroaching the ‘safe space’ given to officers and external parties in respect of the provision of commentary and advice to CoMin in this instance would be likely to discourage senior officers from being involved in advising Council on matters of national importance in the future. Cabinet Office are satisfied therefore that releasing the information in this instance would inhibit the free and frank provision of advice to CoMin and section 35(b)(i) of the Act is therefore engaged. The “watering down” of the advice provided by senior officers or external advisors to CoMin on matters of national importance would adversely impact the quality of CoMin’s decision making, thus harming the effectiveness quality of work undertaken by the CoMin. Section 35(a) of the Act is therefore engaged. As section 35 is a qualified exemption, it is subject to a public interest test. The public interest must be something that is of serious concern and benefit to the public at large.

Factors in favour of disclosure • The disclosure would provide the public with an insight into the depth of information and advice provided to CoMin as part of their decision making 4 process, building public confidence in the role undertaken by senior civil servants and third parties who are charged with advising CoMin on significant projects such as this; • The disclosure of the information would provide insight to all of the factors considered by CoMin that informed their decision making, dispelling any myths in respect of the quality of that decision making; and • Open policy making will increase trust in Government.

Factors in favour of withholding • The advice is based on current or recent factors that are confidential or sensitive in their nature. Owing to the recentness of the advice these matters remain highly sensitive; • Disclosure would be likely to inhibit the ability of public authority staff and others to express themselves openly, honestly and completely, or to explore extreme options, when providing advice or giving their views as part of the process of deliberation. Disclosing such information could therefore impair the quality of decision making by the public authority. It may also impair the subsequent record keeping of advice ("the chilling effect"); and • In the case where advice to CoMin on policy matters is "watered down" the effectiveness of CoMin's decision making, under paragraph 1.19 of the Government Code, would be harmed. In taking these factors into account the Cabinet Office determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information. s35(c) – Conduct of Public Business Whilst our aim is to provide information whenever possible, in this instance the information is exempt under section 35 of the Act, as disclosure would be likely to otherwise to prejudice the effective conduct of public business. The IoM Government strives to conduct public business in respect of purchases and acquisitions in a manner that achieves good value for money for the taxpayer. Achieving good value for money is dependent on the Government being able to negotiate effectively with third parties. The disclosure of information about how Government approaches commercial negotiations such as this acquisition would provide third parties with insight, which would potentially place Government in a disadvantageous position in respect of any similar future negotiations. Thus release of the information would be likely therefore to prejudice the effective conduct of public business in any similar situations where achieving value for money for the taxpayer is the key driver. Section 35(c) of the Act is therefore engaged. As section 35 is a qualified exemption, it is subject to a public interest test. The public interest must be something that is of serious concern and benefit to the public at large.

Factors in favour of disclosure • Disclosure of the information would allow the public to understand the diligent approach that the Isle of Man Government (“IOMG”) takes in order to achieve value for money in business transactions; 5 • The disclosure of the tactical information would present transparency in the process undertaken by IOMG in their business transactions and demonstrate the strive to achieve the best price possible; and • Disclosure of the information would dispel any myths in respect of the thoroughness of the acquisition process.

Factors in favour of withholding • The policy in respect of the commercial operation of the IoMSPCo is yet to be concluded and therefore the information remains highly sensitive; • Disclosure of the information would likely harm the effectiveness of IOMG in conducting future negotiations on similar matters, thus impacting the overall effectiveness of the public services in achieving results and obtaining value for money; and • Disclosure of the information would likely harm by limitation, the future commercial operation options available to IOMG in respect of the IoMSPCo. In taking these factors into account the Cabinet Office determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information. S40 – Legal Professional Privilege While our aim is to provide information whenever possible, in some instances information is exempt from disclosure under section 40 of the Act as it is information in respect of which a claim to legal professional privilege could be maintained. As section 40 is a qualified exemption, it is subject to a public interest test. The public interest must be something that is of serious concern and benefit to the public at large. The matters which were considered in applying the public interest test are as follows:

Factors in favour of disclosure • It would add further scrutiny on the decision making process and would serve to establish the grounds on which these decisions are made; and • There is a public interest in revealing whether or not Cabinet Office relies and follows any legal advice to which it receives.

Factors in favour of withholding • There is a very strong public interest in maintaining the public policy of protection provided to legal professional privilege; • The legal professional privilege exemption in this case relates to the content of a contract which is currently live; and • There is real potential, in the case where legal professional privilege is published as a result of a Freedom of Information request, that those providing legal advice to IOMG may be reluctant to offer frank advice, given the potential risk of that advice being disclosed into the public domain. This would therefore put the Government at a distinct disadvantage where there is a reliance on legal advice received.

6 In taking these factors into account the Cabinet Office determined that the factors in favour of maintaining the exemption outweigh the factors in favour of disclosing the information. With reference to the handwritten notes taken at each CoMin meeting, these have not been provided. This is because either they are out of the scope of the request or because the following exemption has been applied and therefore the information is fully exempt: S35(b)(ii) – Conduct of Public Business While our aim is to provide information whenever possible, in this instance the information, that is handwritten notes held by the Cabinet Office in respect of CoMin meetings, is exempt from disclosure under section 35 as disclosure would be likely to inhibit the free and frank exchange of views for the purposes of deliberation.
As section 35 is a qualified exemption, it is subject to a public interest test. The public interest must be something that is of serious concern and benefit to the public at large. The matters which were considered in applying the public interest test are as follows: Factors in favour of disclosure • The acquisition of IOMSPCo is a matter of national importance and therefore there is a strong public interest in disclosing the factors which were considered during Council’s deliberation; • Provides an assurance to the public in respect of the robustness of the deliberation and decision making process; • Demonstrates the openness and transparency of Government; Factors in favour of withholding • Disclosure would be likely to inhibit the free and frank exchange of views by Ministers and officers for the purposes of deliberation and decision making; • Disclosure would impinge on the ability of Ministers and officers to speak freely on matters considered b

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