Public Services Ombudsperson, disclosure obligations & the role of a Review Board

Expanding on point (3), in my post about a Public Services Ombudsperson and about “Disclosure Obligations,” the consequences of the current lack of disclosure obligations from the Civil Service during review proceedings are significant.

In Guernsey, a complainant must exhaust the Civil Service’s internal complaint processes before they may ask the Independent Complaints Panel to determine whether the matter can be referred to a Review Board – which will be convened for that purpose if the application is successful. At this point, one would expect there to be an obligation for the Civil Service to disclose relevant information to the complainant. However, in my experience, they maintained that they have no such obligation to the complainant, but that it is for the Review Board to request the disclosure of information. This is unfair as the process is then skewed in favour of the Civil Service because the Review Board just convened cannot know the nuances of the case at that early stage and whether certain evidence is relevant or not.

I’m writing this post to address the shortcomings of the review process, before the vote on the PSO by Guernsey politicians – rather than my specific case. Nonetheless, as mine is the sole case heard in five years, it inevitably becomes our focus of discussion.

From my unique experience, where sheer persistence did lead the case to be the only one in those five years to reach a Review Board (albeit with little personal benefit), several critical issues become apparent:

1. Restricted Information Access: I’ve been severely hindered by limited access to crucial evidence when challenging Guernsey’s Civil Service, diminishing my ability to effectively contest their actions. I repeatedly hear that I’m not alone.
2. Temporising: Forced to make a data subject access request (DSAR) because there was no route to proper disclosure, I was met with administrative silence, and it took the involvement of the independent Data Protection Authority for the CS to even acknowledge a DSAR, months late. And when they did, the evidence returned to me by the Civil Service was irrelevant (my own email trails etc.) & did not include crucial material I sought. They did, however, tell me my name and address, and gave me a sheet of address labels, should I feel the need to write to myself. I’m not there quite yet.
3. Compromised Review Process: The absence of proper disclosure undermines a Review Board’s effectiveness. If key evidence remains undisclosed, it must lead to bias and unfair outcomes. This is particularly so if a Review Board are inclined to maintain the status quo by ignoring evidence.
4. Inequitable Complaint Resolution: The system disproportionately favours the Civil Service, which can withhold important information, creating an imbalance and undermining the principles of justice and equity.
5. Eroding Public Trust: The lack of transparency in the disclosure process must significantly reduce public confidence in the entire process. An aggrieved member of the public will think ‘what’s the point?‘
6. A Closed System: Without a Freedom of Information Law and with the Civil Service’s restrictive view on information release, Guernsey’s system remains non-transparent and closed to public scrutiny – which is just how our CS want it, despite what they may say to the contrary.
7. Risk of Power Misuse: Without enforced disclosure, the Civil Service will continue to misuse its power because it knows that it can withhold information selectively, which allows for skewed decisions & poor conduct in the first place.
8. Delayed and Skewed Justice: It took over 2 years to elicit relevant information in my case from Guernsey’s Civil Service.
9. No Justice and a Finding Contrary to the Facts: Even then, critical evidence was omitted from the re-review mandated by the Review Board and commissioned by the Civil Service, despite the missing evidence falling within the terms of reference that the RB stipulated. This omission enabled the Review Board to reach an implausible conclusion: that the Civil Service was not at fault, whereas the evidence points to the opposite.

So it just carries on – the barriers to obtaining necessary information will continue to discourage individuals from lodging complaints against the Civil Service, perpetuating unresolved issues. And the CS will continue to operate in a vacuum of accountability.

One might cynically argue that obligations to disclose will carry an administrative burden, but surely transparency and fairness should supersede ‘efficiency’ concerns, should they not? Acceptable disclosure requirements to permit justice to prevail should not be excessively onerous; if a case has got as far as a Review Board, it must have merit – and prompt, proper and full disclosure of all material facts must be made.

The stakes for an individual’s reputation and livelihood in administrative proceedings can be just as high as in a court case. Thus, the standards of transparency and fair access to information should be comparable.

In my case, the Review Board attempted an in-camera hearing, which I refused so as to uphold transparency and thereby protect myself. Expanding on the points above, it’s worth reiterating that the subsequent Civil Service re-review, (that is, review # 3) demanded by the Review Board, stepped around key evidence that I had adduced. That evidence was within the RB’s stipulated terms of reference. I could only get this evidence because I used a DSAR to obtain it¹. The Review Board nonetheless accepted the flawed findings of this re-review, even when this evasion of primary evidence was directly pointed out to them in writing. (As were other fundamental errors and contradictions in this re-review.) Accordingly, it seems impossible to accord their findings with the facts of the matter. Pure Kafka.

Compounding the problem is the absence of an appeal mechanism, which prevents any challenge to these decisions.

The small size of Guernsey’s jurisdiction (pop. 64,000) is precisely why reliance on internal resolution alone is problematic. There are inherent conflicts of interest. External oversight is essential. Even one case of perceived unfairness due to opaque processes is one too many for public trust. If there’s only been one case in 5 years and that was handled wrongly, then that is a 100% failure rate.

Statistical evidence on complaint volumes and escalation rates should be made public to quantify concerns and benchmark the system’s performance. Details can be anonymised. That only 1 complaint in 5 years made it to a review board suggests grave reluctance to scrutinize the Civil Service, not exemplary complaint resolution. It took me 3 years to get a complaint ready to be heard. The efforts to avoid a public hearing and to hide evidence that Guernsey’s Civil Service went to were remarkable. The public resources expended – ridiculous. How many private people have the resources and willpower to go through this against the government and have therefore simply given up?

As an aside, I can show non-disclosure is a part of the standard operating procedure for Guernsey’s Civil Service. See here.

In summary, proper disclosure obligations, coupled with independent oversight through a Public Services Ombudsperson, followed by their determination of the matter, should provide a just review process. Requiring the disclosure of all necessary information from the outset will avoid inefficiencies and delays caused by civil servants withholding information in the hope of deterring complainants. This will not only streamline the process but also significantly reduce the administrative burden on the civil service by eliminating the need for prolonged engagements and repeated information requests. It will save taxpayers’ money in another way, also, because proper scrutiny will act as a deterrent in the first place.

Transparency engenders public trust; opacity invites doubt.

The PSO must be truly independent of the Island; a frightening proposition for our civil servants.

1. The Development & Planning Authority were determined to have breached the Data Protection Law in this matter by the ODPA on 23/06/2023. Although considered minor in DP terms, in evidential terms the material itself should have been determinative of the case. [↩]