FOI Man looks at new guidance issued by the Cabinet Office which appears to directly contradict the Information Commissioner.
Email is a fraught subject for information managers. Take this recent (and rather excellent) blog post from records management consultant James Lappin. As James makes clear, few – if any – organisations have really got a handle on how the valuable information held in email should be retained and managed.
And that’s just the email held in corporate accounts. If staff or others use their own private email accounts to conduct organisational business that creates a whole new complication. Especially if you’re a public authority and that business might be subject to the requirements of the Freedom of Information Act.
Now unless you have a very short memory, you will recall that the Coalition Government has had its fingers burnt in this area before. Through clever use of both FOI and the Data Protection Act (and useful leaks), Financial Times journalist Chris Cook established that Education Secretary Michael Gove and some of his special advisers (or Spads) had been using private email accounts to conduct business which appeared to many (eventually including the Information Commissioner) to be Government business. It was suggested that this had been done to avoid potential disclosure of the emails through FOI.
Following this controversy, the Information Commissioner issued guidance to public bodies which confirmed that email held within private email accounts could indeed be subject to FOI, and what his approach to this tricky issue was.
If I were a Government that had been accused of trying to avoid proper and lawful scrutiny through the use of private email accounts to conduct government business, I think I might want to take a “whiter than white” approach to these matters in future. I’d want to make sure that I followed the Information Commissioner’s line on the issue to the letter, so that nobody could put so much as a hair between my approach and that of the regulator. That seems sensible doesn’t it?
So imagine my surprise as I read the Cabinet Office’s new Guidance to Departments on the Use of Private Email, published perhaps less surprisingly late last Friday afternoon. The guidance starts off by pointing out that it should be read in conjunction with the Information Commissioner’s guidance. So, obedient to the last, I’ve done just that. Let’s see what they say, shall we?
“There is a need to have a clear demarcation between political and departmental work.”
“The originator or recipient of a communication should consider whether the information contained in it is substantive discussions or decisions generated in the course of conducting Government business…”
“In order to avoid the complications of requesting searches of private email accounts, and other private media, records management policies should make clear that information on authority-related business should be recorded on the authority’s record keeping systems in so far as reasonably practicable.”
“Civil servants and Ministers are generally provided with access to Government email systems. Other forms of electronic communication may be used in the course of conducting Government business.”
“When a request is received, public authorities should consider all locations where relevant information may be held. This may include private email accounts.”
“As set out above, it is expected that Government business should be recorded on government record systems. It will generally be reasonable to search only within those systems when a request has been received.” [so presumably, any FOI Officer asking a Minister if they have emails relating to Government business in their private email account will be considered unreasonable]
“Public authorities should also remind staff that deleting or concealing information with the intention of preventing its disclosure following receipt of a request is a criminal offence under section 77 of FOIA.”
[Silence falls. Tumbleweed rolls down Whitehall.]
Now to be fair to the Cabinet Office (no, come on), some may see these differences as subtle and perhaps it is only my world-weary cynicism that leads me to see conflict. But the final section of the Cabinet Office guidance dealing with The Freedom of Information Act and searches for information sees the Cabinet Office take a running jump away not just from the Information Commissioner’s guidance, but also from any reasonable interpretation of the legislation itself.
“The FOI Act allows people to request information; it does not give the requester any power to dictate where the department should search for that information. It is for the department to consider where the information might be and to take reasonable steps to find it.”
I’m sure that it’s just a coincidence that Chris Cook has made a spate of requests to the Cabinet Office and Department for Education asking for information sent by individuals on Government business using private email accounts. Surely the Cabinet Office couldn’t be so touchy as to write a policy just to thwart the efforts of a single journalist?
But the point is that FOI doesn’t place any limitations on the way that requesters should ask for information. They merely have to describe “the information requested” (FOI, s.8). If that description happens to include the location that they believe the information can be found in, the only reasons why a public authority would not be obliged to provide that information is if an exemption applies to it, if the request is considered to be vexatious, or if to provide the information in that location would exceed the appropriate cost limit.
But you don’t have to take my word for it. The Information Commissioner’s Office issued a decision notice (not yet available on the ICO website) to the Cabinet Office the week before this guidance was published making exactly the same point.
Chris Cook had made a request for “copies of emails relating to the government’s education reforms, sent between the Prime Minister and a special adviser, using non-GSI email accounts”. Given the events described above in relation to the Secretary of State for Education, it can perhaps be understood why such a request might be made. The Cabinet Office argued (as in their guidance) that FOI did not allow requests for information by reference to a particular location or medium, and that Chris’s request was therefore not a valid request. The Information Commissioner concluded that Chris’s request was indeed valid for the reasons I’ve suggested above.
So the week after the Information Commissioner has explicitly stated to them that a request for information held in a specific location is a perfectly valid request, the Cabinet Office have published official guidance to Government departments contradicting the Commissioner’s view. Not for the first time, this Government appears to be interpreting the law to suit itself in the face of all the facts, and raising a single finger in the direction of the Information Commissioner.