FOI Man looks at whether Civil Servants should be concerned about invasion of privacy if emails in private email accounts are subject to FOI.
Hi, I’m back. My apologies for being away longer than promised, you and my other three readers (readership has gone up in my absence, so perhaps I should learn something from that) must have been worried. It turns out that major life rituals and transferring ownership of property and physical belongings are the equivalent of kryptonite for the blogging information superhero. (Not, he says hurriedly, that any of those things are bad for me in themselves, just that together they have prevented me finding the time to blog). *drops shovel*
Now down to business. This morning the Guardian reported, charmingly, that Civil Servants were “shitting bricks” at the prospect of an Information Commissioner ruling that emails in their personal email accounts and – steps back in amazement – Post-It Notes (TM) – are subject to FOI. Cue the sound of several hundred FOI Officers, lawyers and knowledgeable requesters simultaneously and repeatedly banging their heads against the nearest wall.
Of course, this isn’t news. If you think back, way back, as far as two or three months ago, this very issue was being discussed in relation to the Education Secretary, Michael Gove. And right here on these very pages I explained that, yes, information in personal email accounts, and indeed any information held anywhere, could be subject to FOI if it related to the public authority’s business. It makes sense. If this wasn’t the case, all Civil Servants and Government Ministers’ houses would have collapsed under the weight of the paperwork ‘rescued’ from the office and nobody would ever use official email accounts for anything.
However, there is an obvious – and good – question here and this morning I was asked it. If personal email accounts are covered by FOI, who checks these accounts? Are public officers not entitled to any privacy?
The answer is that of course they are. Firstly, the same rule that is interpreted to mean that emails in private email accounts are subject to FOI, also means that personal emails in work accounts aren’t covered by FOI. As with much law, it comes down to a matter of interpretation. Whether it is covered by FOI or not depends on whether the person who is looking for the emails takes the view that they are personal or business related.
Secondly, in practice, whether you provide emails to answer an FOI is still, largely, a matter of conscience. Many public authorities are physically not able to search across even their own official email accounts. Even if they can, the expense can be immense, and may lead to an authority refusing a request where this was a necessity. And then there are the legal and moral constraints of privacy, data protection and so on. As I’ve written before, FOI Officers still rely for the most part on colleagues providing relevant information on request. Since this is the case for information held physically within the authority’s buildings and in its own email accounts, there is little prospect of your friendly neighbourhood FOI Officer turning up with heavies to demand access to your private email account.
So why should public officials provide emails from private accounts when answering FOI requests? What can make them? Mainly, as with many things, it comes down to conscience and professionalism. If it was later found that they’d deliberately withheld relevant emails even though they knew that they were subject to the legislation, then section 77 comes into play – they would be guilty of a criminal offence and could be taken to court and receive a fine. How many people have been even charged with this offence since 1 January 2005? A big fat zero. So there are many reasons why Civil Servants need not be concerned to bring a spare pair of underpants to the office this week.
Isn’t the most disturbing thing here that civil servants ever thought they were not covered? I worked in FOI in a large public authority since before day zero and it was always clear to us that it did – and to all the other FOI officers I have dealt with over the years. Which is why before day zero we banned the use of such accounts for work related email, save in unavoidable exceptional circumstances, and stipulated that in such cases the official email account must always be cc’d (or forwarded to) – the latter avoiding the need for us to have to get into the privacy issues.
In truth, for “Civil Servants” we should probably read “Special Advisors” and “politicians”. Civil servants that I know are well aware of the implications of FOI and do their best to comply.
Dear FOI man,
My name is Ben Worthy and I’ve been studying FOI at the Constitution Unit. we have just finished a report on the impact of FOI on local government
We did a short report collating some of the very varied ways in which FOI has been costed
Keep up the good work,
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Welcome back, and belated congratulations!
Agreed that it’s almost certainly more likely to be the senior advisors and politicians who “don’t understand” (case in point: Oliver Letwin …)
I am appalled that even basic Data Protection training is not mandatory for MPs (especially given their rights to obtain information about any constituent who contacts the MP, without said constituent’s consent …) – let alone information governance matters (including FOI) ‘in general’.