Tag Archive for Cabinet Office

Cabinet Office issues new guidance on private email accounts

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?

Information Commissioner:

“There is a need to have a clear demarcation between political and departmental work.”

Cabinet Office:

“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…”

Information Commissioner:

“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.”

Cabinet Office:

“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.”

Information Commissioner:

“When a request is received, public authorities should consider all locations where relevant information may be held. This may include private email accounts.”

Cabinet Office:

“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]

Information Commissioner:

“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.”

Cabinet Office:

[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.

Public Data Vs FOI?

FOI Man welcomes Government moves to improve transparency across the public sector. But a more pro-active approach to publication of data mustn’t be used as justification for (or a smokescreen for) weakening the right to make requests for information through the Freedom of Information Act.

The Government’s Transparency Board is, as they say,  just what it says on the tin. It is a Board that champions transparency across the public sector, chaired by Francis Maude. Its membership is impressive, including in its number Sir Tim Berners-Lee, inventor of the World Wide Web, and Professor Nigel Shadbolt, a champion of open data. And as you’d expect from such an institution, its minutes are published online.

The minutes of the latest meeting of 2 March are already available to anyone who’s interested. They include a discussion of the Freedom of Information Act and its relation to the transparency agenda. The thing that strikes me about the report of this discussion is that a presentation on FOI very quickly gets usurped by the general discussion about open data, despite the fact that the rest of the meeting covers much the same ground. This may be just the way its been recorded, and it may not be anything to worry about, but the sense to me is that FOI isn’t seen as a significant part of this process. There seems to be a belief that wider transparency is almost a ‘cure’ for rising FOI requests (which I’m sceptical of, by the way). To quote the minutes:

“It was noted that a move towards proactive publication, rather than just a response to requests for data, was firmly in line with the aims of the Transparency Board.”

Obviously, the Government is keen to press its own agenda, and doesn’t want to work within the straightjacket of the previous Government’s law. Though in truth, there seems little in their agenda that FOI didn’t already permit – it’s a difference of emphasis rather than real substance. Which isn’t to say that an emphasis on more transparency isn’t welcome.

But I think that those who support FOI as a powerful tool for opening up Government ought to be watching developments carefully. I’m still nervous that the Government at some point is going to suggest that as they’re disclosing all this data, there’s a reduced need for the general right of access (the right to make FOI requests). That they use this agenda to bring in restrictions on that right, such as a prohibitive fees regime. This won’t happen until after the post-legislative scrutiny process has been completed of course, but we need to keep an eye on where that scrutiny is led.

The general right of access is very important. As I’ve said before, it means that you choose what information you want (subject to statutory exemptions approved by Parliament). Increased pro-active disclosure is valuable, of course, but it means that the public body, or Government, chooses what it will allow you to have access to. True transparency requires both to be truly effective, not an either/or.

So it should be Public Data + FOI.

FOI Man at Large: the DPO Conference

Earlier this week I was lucky enough to attend the Information Commissioner’s Data Protection Officers Conference in Manchester. Don’t be misled by the name though – there was plenty to entertain us FOI obsessives.

From the keynote speech from Lord McNally, the Lib Dem Minister of State in the Ministry of Justice, through to the Commissioner’s closing remarks, this was a conference that aimed to fully integrate the Commissioner’s Data Protection and FOI duties. So what was there that caught the eye on FOI?

It was clear from Lord McNally that support – and opposition – for FOI and openness issues is cross-party within the Coalition. He spoke of his surprise at finding himself on the same side as Francis Maude and Eric Pickles in meetings.

In questions, it became clear however that there was some dispute within Government over whether FOI should be extended to the private sector when it provides public services. Some in Government are sceptical as they argue that this would deter companies from bidding for Government contracts. From the tone of the Minister’s response it appeared that there is some fierce debate going on in Government on this very issue. Interestingly, Graham Smith of the ICO later argued that the private sector was effectively covered under the existing Act, as FOI continues to cover services provided on behalf of public bodies.

Lord McNally stated that the changes to the Information Commissioner’s role proposed in the Protection of Freedoms Bill were designed to strengthen the independence of the Commissioner. The Commissioner himself welcomed them later in the day, though he did suggest that if the Commissioner is only to serve one term, that term ought to be longer.

The Orders bringing ACPO and UCAS under FOI will be laid at some point from October this year. My guess, based on nothing in particular (other than neatness), would be that the aim would be for the order to come into force on 1 January 2012, but perhaps it will take effect instantly. I know that ACPO have some excellent people helping them prepare for this, and I’m sure it’s the same picture at UCAS.

Lord McNally also spoke about the changes to the 30 year rule for Public Records. He explained that the long lead in time is because the move to a 20 year rule is an expensive exercise.

Post-legislative scrutiny of FOI is seen by the Minister as an important step after 6 years of the Act. The fact that issues will be aired in a public forum will help in developing proposals to amend the Act further.

We also heard from Katie Davis of the Cabinet Office. It was clear from Katie’s presentation, as from the Minister’s speech, that the Government really does attach great importance to opening up public data. The Government’s aim is to be the most open and accountable government in the world. She explained that the Government’s Transparency Board, chaired by Francis Maude, was challenging assumptions across Whitehall. Its membership is certainly impressive – as well as ministers, it includes luminaries such as Professor Nigel Shadbolt (whose Southampton University home launched their open data repository this week) and Sir Tim Berners-Lee (inventor of a little thing called the world wide web). It was good in questions to hear her comment that Local Government is leading the way on transparency.

A question mark still remains over the impact of open data initiatives on the general right of access under FOI. Senior figures within the Information Commissioner’s Office remain as sceptical as many of us FOI Officers as to whether bulk disclosures will lead to reduced numbers of FOI requests.

Graham Smith, Director of FOI at the ICO, struck a cautious note. He commented that FOI was certainly embedded in the public sector; everyone knows they have to comply, but whether they want to is very much another matter. There is a culture of compliance rather than openness at present, in his view. The Government’s transparency agenda is very much welcomed by the ICO. Graham spoke of a lack of political direction on openness in the past which has contributed to lack of progress in changing the culture.

An interesting point raised by Graham was the fact that our FOI legislation was very much designed with paper record-keeping systems in mind. Now that much of the work of Government is carried out electronically, does that affect the effectiveness of the Act? Finally, he observed that the private sector appeared to be ‘waking up’ to FOI. Not just in terms of using it, but in realising the implications of FOI for their dealings with the public sector.

Later in the day, there was the message that public sector bodies shouldn’t be afraid to apply the provisions for vexatious and repetitious requests where necessary. Similarly aggregation of requests when estimating costs. The ICO will be supportive when looking at these cases where it is clear that requesters are making significant numbers of requests or are harassing authorities. It was clear that this attitude was coloured in part by the ICO’s own experience with some requesters! Public bodies should also be careful to protect personal details of their employees – in many cases, these details will still be protected by the Data Protection Act and section 40 ought to be utilised.

The Commissioner raised a laugh at the end of the day when, following his best impression of the former Prime Minister expressing his regret over FOI, he exclaimed, “Tony, it wasn’t about you!”. He reminded FOI Officers that we should be on the side of Dr Samuel Johnson – a famous exponent of openness – and not that of Cardinal Richelieu, who believed that secrecy was the first requirement of Government.