If a request asks for the number of emails sent by a public body, should it exclude emails that relate to personal or political matters?
Section 3(2) of FOIA says:
For the purposes of this Act, information is held by a public authority if—
(a)it is held by the authority, otherwise than on behalf of another person, or
(b)it is held by another person on behalf of the authority.
Where it says “otherwise than on behalf of another person”, s.3(2)(a) is usually interpreted to mean that emails sent or received in a personal capacity, or party political emails sent or received by politicians and their advisors, will not be held by a public authority. A decision that illustrates this interpretation is Montague v IC & Liverpool John Moores University (EA/2012/0109, 13 December 2012).
However, if someone asks for the number of emails sent or received by a particular individual at a public body, it will not be appropriate to exclude personal or political emails from total figures on the basis that the information is not held. This is discussed in Lotz v IC & DWP (EA/2016/0150, January 2017) at para 29:
There is a distinction between the content of a personal or political email sent from a DWP email account and the fact that one has been sent which might reflect upon the use of resources within the DWP (within the Act) rather than the content of the emails (which is not).
As the decision goes on to say, it might be appropriate to withhold such information if an exemption applies, for example the exemption for personal data at s.40(2). But for the purposes of FOI, the number of emails on a public body’s email server will be information held, whatever the nature of those emails’ content.
Source: Lotz v IC & DWP (EA/2016/0150, January 2017) at para 29