GoveGate and FOI Avoidance

FOI Man thinks the Information Commissioner must be seen to carry out a thorough investigation into claims that Michael Gove’s Department for Education tried to avoid FOI disclosures by using private email accounts

The Financial Times, followed by various other news outlets, ran a story this morning about Michael Gove’s Department for Education. The story revolved around an email sent by a Special Adviser which included the following statement:

“i will only answer things that come from gmail accounts from people who i know who they are. i suggest that you do the same in general but thats obv up to you guys – i can explain in person the reason for this…”

Leaving aside the poor grammar at the top of the DfE, the suggestion is that this was being done to avoid FOI. That routinely, the Education Secretary and his closest advisers were carrying on Government business on private email so that it couldn’t be found when FOI requests were received.

This is a serious allegation. In my view the most serious offence in the FOI book (morally if not legally). It’s one thing to refuse requests using exemptions approved by Parliament. It’s quite another to stick two fingers up to Parliament and the electorate by choosing to work in a way that prevents information being discovered when requested.

As others have pointed out, section 3(2) of FOI means that it doesn’t matter how you carry out government business, it will still be subject to FOI. But of course, if business is being carried out on GMail or some other private email account, the individual has to be trusted to disclose all relevant emails when they are asked for them by an FOI Officer. If they’re away from the office, their colleagues will not know about them. And if automated searches are used to locate emails relevant to requests, they of course won’t pick up emails held outside the system.

The DfE have argued that the emails related to Conservative Party business. If so, then technically there is nothing wrong with what they are doing. But the flip side of s.3(2) is that even if such business was carried out on DfE accounts, it would not be subject to FOI. So there’s really no need for it to be carried out using separate email addresses. In fact, many might well take the view that it isn’t a good idea – aside from the risk of somebody concluding that you might be trying to hide something, there are also potential security risks connected with using private email accounts which are not generally subject to the same levels of encrypytion as Government email accounts.

It has been suggested elsewhere that the s.77 offence of seeking to destroy or hide requested information will not apply in this case because the alleged attempt to conceal information was routine, not in response to an FOI request. I wouldn’t be so sure. If anyone using a private email address has ever told an FOI Officer who asked for information that they didn’t hold it, and it was held in their private account, this would fit s.77 in my view. The difficulty would be proving intent. You would have to prove not only that they had relevant emails in their account, but that they had known that they had, and had known that technically they were subject to FOI. That’s quite a lot to prove.

This case goes to the heart of public suspicion of FOI practice in Government and beyond. The Information Commissioner must be seen to carry out a rigorous investigation – otherwise the suspicion will remain that FOI can be easily sidestepped when inconvenient.

If you want to read a further analysis of this story, I recommend Jonathan Baines’ (@bainesy1969) post from earlier today.

5 comments

  1. Steven868 says:

    Time for an FOI request to the Department for copies of all correspondence relating to official government business which has been carried out using external email accounts?

  2. […] seems to raise two points. The first is how exactly this complies or not with FOI, an issue FOI Man discusses in depth as does David Higgerson. The difficulty is that while it may not be strictly against the […]

  3. Paul Francis says:

    Good post. Perhaps the ICO should consider issuing some kind of guidance note to authorities covering this iasue? Even if it is technically legal it goes against the spirit of the legislation.

  4. Prefer To Stay Anonymous says:

    …the flip side of s.3(2) is that even if such business was carried out on DfE accounts, it would not be subject to FOI. So there’s really no need for it to be carried out using separate email addresses…

    Except that it is forbidden to conduct party political business using official resources.

    1.Time for an FOI request to the Department for copies of all correspondence relating to official government business which has been carried out using external email accounts?

    That will be immediately rejected due to the cost of complying exceeding the set cost limit 🙂

  5. […] TO ADD] FoIMan’s and Tim Turner’s takes on this are worth a read. Share this:TwitterFacebookLike this:LikeBe […]