The Prejudice Test

Sometimes scheduled public authorities (SPAs) and practitioners will need to consider exemptions provided under the Freedom of Information (Jersey) Law, 2011 to decide whether disclosing information would lead to prejudice.

In order to engage prejudice-based exemptions, there must be a likelihood that disclosure would cause prejudice to the interest that the exemption protects.

The test of prejudice involves several steps:

• Identify the applicable interests within the relevant exemption
• Identify the nature of the prejudice. The SPA must show that:
  • The prejudice claimed is real, actual or of substance; and
  • There is a causal link between the disclosure and the prejudice claimed.
• Decide on the likelihood of whether the prejudice would or would be likely to occur:
  • ‘Would’ and ‘would be likely’ imply different levels of likelihood.
  • Where an SPA hasn’t specified the level of likelihood or provided clear evidence to the contrary, the Information Commissioner will take it that ‘would be likely’ applies.

The prejudice test relates to circumstances at the time when the SPA received the request or within the statutory time for compliance.

Once the exemption has been engaged on the basis of the prejudice test, it’s then necessary to consider the balance of public interest.

You can read more detail about the prejudice test in our guide.