Is Michael Gove’s email held by DfE?

FOI Man considers whether an email from the Secretary of State for Education to several colleagues is held by the DfE for the purposes of FOI.

In the Autumn of last year, Chris Cook, the Education correspondent of the Financial Times, broke a story which is of interest to FOI watchers everywhere. He had uncovered evidence suggesting that the Education Secretary, Michael Gove, and special advisers in the department, had been using private email accounts to conduct Government business. The suggestion was that this was being done to avoid the emails coming to light through FOI.

The story has led to an investigation by the Information Commissioner, new guidance from the Commissioner, and questions in Parliament. And Chris himself has proved tenacious in pursuing this story.

For their part, the Department for Education and Mr Gove himself have argued that they had been following Cabinet Office guidance (though Cabinet Office responses to FOI requests have suggested that if such guidance existed, it was not written down), and that the emails themselves related to party political business, and were therefore not held by DfE.

Chris has been at an advantage in this matter. He already had the emails before he made his FOI request, so knew what he thought he should have received. When they weren’t all received, he complained to the Information Commissioner. That investigation is ongoing.

Today, Chris has published one of the emails that DfE insist is “party political” on his FT blog. I’ve studied this email.

There are certainly aspects of the email that are party political. It talks about Labour’s record in negative and explicit terms. You wouldn’t expect a Minister to write to a civil servant in that way.

But here’s the rub. One of the recipients was a civil servant. If civil servants are supposed to be politically neutral, why would you copy one in on a party political email? I’ve never worked in a Ministerial Office or even a government department, so I can’t be sure, but it seems odd.

And there are aspects of the email that sound rather more like departmental business. It discusses communications planning, apparently for the Department rather than the Conservative Party. It asks for information about his Ministerial diary.

It seems to me that parts of the email at least relate to departmental business.

What does the Information Commissioner’s guidance say about this issue? It lists the factors to consider when deciding whether email in a private account relates to Government business:

  • the focus of the request, indicated by the words used by the requester;
  • the subject matter of the information which falls within the scope of the request;
  • how the issues to which the request relates have been handled within the public authority;
  • by whom and to whom was the information sent and in what capacity (e.g. public servant or political party member); and
  • whether a private communication channel was used because no official channel was available at the time.

There doesn’t appear to be any dispute over the focus of the request – if the email is departmental business, it’s covered by the request. We have little knowledge of how such business would normally be carried out, but surely communications planning for DfE is normally a departmental matter. We do know that the information was sent by the Secretary of State for Education, and the recipients were his Special Advisers (who admittedly have an ambiguous role, but are based in the Department), and a civil servant (to their private email address presumably, but nonetheless significant). We can’t know for sure why this channel was used.

A Tribunal decision last year looked in detail at whether information was held by a university, and I think that some of their observations in that case are relevant here:

“The effect of this subsection [s. 3(2) FOIA] is to confirm the inclusion of information within the scope of FOIA s1 which might otherwise have been arguably outside it. The effect of paragraph (a) is that information held by the authority on behalf of another is outside s.1 only if it is held solely on behalf of the other: if the information is held to any extent on behalf of the authority itself, the authority ‘holds’ it within the meaning of the Act. The effect of paragraph (b) is that the authority ‘holds’ information in the relevant sense even when physically someone else holds it on the authority’s behalf.”

The judge who reviewed the case when it was appealed to the Upper Tribunal was very clear that in his view “held” had its normal English meaning. It shouldn’t be over-analysed:

“A key feature of the FOIA regime is the need to balance the interests of the requester and the public interest in the free flow of information with the legitimate interests of public authorities and third parties.  Moreover, that balance is struck not by over-complicating the simple factual concept of whether information is “held” by a public authority – rather, it is achieved by the matrix of absolute and qualified exemptions and the application, where appropriate, of the public interest test.”

(for a fuller analysis of this case, read what barrister Robin Hopkins of 11KBW had to say about it).

My reading of this is that if in doubt, the information should be considered to be held by the public authority. It might still be withheld using exemptions, but it has to be considered. I believe there is enough doubt in the case of the email the FT has published to suggest that it should have been dealt with as though held by the DfE. And the lawyers that Chris has consulted all agree.

Of course, that doesn’t mean that the Secretary of State was deliberately attempting to avoid FOI. But it does raise more questions about the DfE’s interpretation of the Act.

32 comments

  1. Captain Sensible says:

    This becomes more ludicrous by the day. The current Information Commissioner has delusions of grandeur and zero understanding of the limits of either his office or the act itself.

    Parliament never intended political communications between politicians and their advisers to fall within the scope of FoI requests. Private accounts held by political operatives,, including ministers, SpAds and civil servants on short term contracts should not be searchable. Just because Graham and Cook wish they were doesn’t change the law.

    Note that the third rate advice by Treasury Solicitors has been ignored by Govt and that serious heavyweight legal opinion is now being obtained. Provisional views confirm that the fantasists may have to think again.

    Mrs Blurt is a private account and is, ipso facto, none of anyone else’s business.

  2. Tim Turner says:

    Nobody thinks that political data is covered by FOI. Let’s ignore that straw man and concentrate on the facts.

    The Freedom of Information Act states explicitly in s3(2)(b) that any information held ‘on behalf’ of the public authority is covered. So unless you think that any information held in an home-working employee’s house, or in a travelling employee’s hotel room, or on a pen drive in an employee’s pocket while they go for a walk at lunchtime, is magically not covered by FOI because it’s not within the buildings or systems owned and controlled by the public authority, there’s nothing confusing or revolutionary about the idea that government information held in a private email account. Everyone in public sector authority should have the maturity to let the public ask questions about what they’re doing and rely on the sensible, harm-based exemptions that the FOI Act provides. If they don’t like it, nobody is stopping them from working in the private sector.

    If the government really is spending money on getting legal advice to get around the Act, the only thing they can expect is FOI requests about how much the advice cost, and what it said.

  3. Captain Sensible says:

    No one is spending money to “get round” the Act. Money is being spent on preventing the scope of the Act being extended beyond the intent of Parliament.

    What the power grab advocates are claiming is that the Act was misinterpreted for years before the current Commissioner suddenly noticed. So thousands of emails between, say, Ed Balls and his SpAds should be FoI-able. What a joke.

    Discussions between politicians and their advisers, whether or not they are ministers and SpAds paid from the public purse, are privileged and fall beyond the scope of the Act. Unless they choose – improperly in my view – to use .gov.uk email addresses to conduct party political discussions, there is no legitimate public interest in the content.

    The current Information Commissioner is a second-rate egotist aided by a couple of lesser journalists with axes to grind. He’s never going to get hold of the Mrs Blurt emails or any others of that ilk so he should stop wasting time and public money on his quixotic campaign.

  4. Tim Turner says:

    Thousands of government emails between Balls and his SpAds – if they were sent – would have been FOI-able. The Tories and LibDems operated well-run, FOI-savvy research departments before the election – I used to deal with their requests as an FOI officer. If neither side had the nous to use FOI to go digging for them, they only have themselves to blame. If messages were sent, they were probably a gold mine. But that was then and this is now.

    If a minister and an advisor use .gov.uk addresses to exchange political emails, those emails would not be covered by the FOI Act because they would be held for political and not government purposes. If you don’t understand that, I’m not surprised that all of this seems so strange and alarming. It’s because you apparently don’t understand how FOI works. The Act applies to information created for specific purposes, not held in specific locations.

    Though I have reservations about some of the decisions Chris Graham has taken, calling him a ‘second-rate egotist’ for properly understanding and applying the legislation is a bit desperate and remarkably disrespectful of an independent public servant. He is, at the very least, a first-rate egotist, and in this particular battle, my money’s definitely on him.

  5. Captain Sensible says:

    Simple question: do you think Parliament intended civil servants to snoop through the private emails of ministers to decide which ones should be released under FoI? Of course not, which makes Graham’s absurdities a clear challenge to the law as it is. A minister talking to his or her SpAd is, ipso facto, political and not a matter for nosy journalists, the most obsessive and deluded of which gives every indication of suffering from a personality defect.

  6. Tim Turner says:

    Simple answer: if they didn’t intend that to happen, they wrote the legislation incorrectly. The FOI Act is written on the basis of information held on behalf of the public authority still being covered. Here’s a tip, Captain: rather than smearing better-informed people who don’t agree with you, get yourself a copy of the FOI Act, and read it. You don’t have to get beyond a couple of pages to find the bit that counts.

  7. Captain Sensible says:

    “on behalf of the public authority” – yeah, that would cover an email between Eric Pickles and Sheridan Westlake discussing the most politically advantageous way of dealing with bin collections – not.

    The truth, as you know, is that the wording of the Act is capable of bearing more than one interpretation, which is why the key determinant is the intention of Parliament. Here there is no ambiguity, which is why you and your fellow obsessives are wrong.

  8. S Jones says:

    Putting the tinfoil hat aside for a moment: human behaviour reality check. There may not have been a “conscious” sinister motive behind all this. Yes, the people that got elected to run the country should be more careful – but how many of us *don’t* mix topic matter in e-mails? Business stuff with ‘let’s do lunch’ or ‘how’s the sick hamster?’; or several work-related topics, because it’s just easier to send it all in one e-mail than write several, oh, but so-and-so needs to know about that *one* bit, better copy them in …

    If information requested is clearly in the public interest and not privileged then it should be disclosed – using the “private vs organisation” argument doesn’t wash with me either. The *official concerned* clearly holds the information. If we (as NHS bodies) are obliged by FOI to obtain data from privately owned organisations who are providing health services and therefore are in receipt of taxpayers’ money, then elected officials or civil servants in receipt of taxpayers’ money should be subject to the same principles. (Is it very wrong of me to find it extremely hilarious that the FOI official who would have to redact ‘mixed’ e-mails would be a civil servant?).

    We are prohibited from using personal non-NHS e-mail accounts for transfer of NHS information (particularly if it’s person identifiable or organisation-sensitive). Perhaps one of the answers is better (or even any – cynical, moi?) information governance training for the elected officials of this country.

    Looking at that, it’s all been said already, and better. I just thought I should make a weak attempt at a worthwhile contribution so I could also point out that:

    1. It doesn’t matter who you vote for, the Government gets in
    2. I *really* miss Yes Minister 🙁

  9. Captain Sensible,

    I must agree with the Commissioner on this one. It is abundantly clear that official Government information held on private E-mail accounts does fall within the scope of the FOIA. Party-political E-mails regardless of where they are held are not covered by FOI. If, for example, Nick Clegg sent an E-mail to all Liberal Democrat MPs relating to party business from his official Government (or even parliamentary) E-mail address then that would not fall within the scope of the FOIA. If Nick Clegg sent an E-mail to his civil servants or other cabinet ministers that related to the business of Government then that would be covered by the Act – even if it was from a Google Mail account that he owned or his Lib Dem party address.

    In essence, Ministers had thought they’d found a way round having things subject to FOI by sending them from private E-mail addresses. However, it’s clear that they were wrong. I do not think, as you suggest, that Parliament intended there to be a way for official business to be taken out of the scope of FOI by storing it on a private computer or using private E-mail addresses. It just doesn’t fit with the spirit of the legislation.

    The rules governing statutory interpretation have long been settled. Where the statute is ambiguous then statutory interpretation dictates that the way that the statute is interpreted must be so as to avoid an absurd result. For example, in R v Allen (1872) when a defendant charged with bigamy argued that he could not be found guilty of the offence on the basis that the law considered his second marriage to be invalid, the court held that “marry” also meant going through the process of marriage. In the 1857 case of Grey v Pearson Lord Wensleydale said:

    “… the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”

    If one then looks at the Introductory Text to the Freedom of Information Act 2000 it reads:

    An Act to make provision for the disclosure of information held by public authorities or by persons providing services for them and to amend the Data Protection Act 1998 and the Public Records Act 1958; and for connected purposes.

    As has already been pointed out Section 3(2)(b) clearly provides that information held by another person on behalf of the authority is covered by the Act. This would suggest to me that Parliament intended that there be no way of “hiding” information for the purposes of FOIA. So, it seems to me that on both counts (rules of statutory interpretation and the intention of Parliament) the Commissioner called this one just right and I am confident that if anyone were to take the issue all the way to the UK Supreme Court that they would find the same.

  10. Tim Turner says:

    Much as the precision and apparently rock solid arguments of Mr Sloan are convincing, I find Captain Sensible’s incessant name-calling oddly beguiling now, especially now he / she seeks to win me over by including me in the insults. But you can do better Captain. Just show me the bit of Hansard which refers to Parliament’s conscious decision to exclude privately-located information from the FOI Act, and all of these inconvenient facts will melt like snow.

  11. Phil Bradshaw says:

    1. I agree with the basic proposition.

    2. But even if not, “one of the recipients was a civil servant” so that email(s) at least was held for FOI purposes as contractual terms will apply to employees which may not attach to ministers. So information which is purely party political in a ministers personal email account is not caught, but the same info in an employees account is.

    3. Its about the information, not the document, so you can have political stuff and non-political in the same document – some info is subject to FOI, some not.

  12. Phil Bradshaw says:

    And I would also add re the comment “What the power grab advocates are claiming is that the Act was misinterpreted for years” that I have worked, including preparation, on FOI since early 2004. In that time I did not come across one person who disagreed with the basic proposition, and that included many senior figures at ICO. The astonishing thing to those working in the area is that anyone ever thought otherwise. As for the ICO changing his tune – not so – see e.g. http://tinyurl.com/84tdhmv which is from 2009 and makes the same points in a similar context.

  13. Captain Sensible says:

    So ICO held the same ridiculous opinion in 2009 as it does now – what does that prove?

    The logical conclusion of the attempted extension of FoI – the notion that any medium can fall within its scope if ‘official’ business is being discussed – is that verbal exchanges between ministers and SpAds could be FoI-able. After all, what is the difference in principle? Ministers should – according to the preening egomaniac Graham – search through their private emails in response to FoI requests and ‘self-report’ anything that might be relevant. So what is to stop the ICO, in an all-too-believable spasm of quasi-judicial activism, from demanding that Minister’s also self-report conversations?

    The private email accounts of political office holders are off limits. So are their phone calls. So are their chats over cups of coffee. What the FoI maximalists won’t admit – although we all know it to be true – is that they resent the existence of ANY protected space. For such creatures, everything said and written by ministers should be assumed to be open to inspection unless the case for an exemption can be made. I am criticised above for name-calling but who is really being puerile? It is those who seek to foist upon us, without democratic debate, a simplistic, one-dimensional view of freedom of information that would be deeply damaging to the possibility of good government.

  14. Anon says:

    Captain Sensible in the interests of a fair debate, are you by any chance a politician, civil sevant or similar?

  15. FOI Man says:

    Interesting that Captain Sensible considers correct interpretation of the Act as more puerile than name-calling. Much as I support the right of anyone to post here anonymously – how could I not given that I used to blog anonymously – I think it’s a useful rule of thumb that people at least say where they’re coming from. So I wonder if the Captain would be willing to say whether he or she is a civil servant, a SpAd or a politician? Or give us any idea of their perspective? I think that would be fair given the way that they express their views.

  16. Captain Sensible says:

    A fair question. I am involved in politics but I am not a minister or a SpAd. I am someone who understands the shallow, self-righteous mentality of those who work at the ICO, from the top down; people who have convinced themselves that they are crusaders in the public interest. In reality, they have a perspective skewed by their need to imbue their their dull bureaucratic lives with meaning – at the expense of good government.

    This is not mere vulgar abuse. It is an insight into the forces that are driving the power grab.

  17. S Jones says:

    .. Quote from #13 “The logical conclusion of the attempted extension of FoI – the notion that any medium can fall within its scope if ‘official’ business is being discussed – is that verbal exchanges between ministers and SpAds could be FoI-able.”

    No it’s not. NMC 2005 guidelines for records and record keeping (paraphrase): if it’s not written down, it didn’t happen.

    Most – if not all – FOI officers can probably quote you specific instances where a request has been made for correspondence held by one or more named individuals in relation to the requester’s topic of interest/concern. It logically follows that it doesn’t matter where that information is held – if it relates to that topic, it’s FOI-able unless excluded by one of the other exemptions in the Act (and not excluded by virtue of being sat in a hotmail/similar account instead of a .gov.uk one).

  18. Secretgeek says:

    Good people of the comments section please take note that Captain Sensible is clearly a ‘troll’ in that he is making inflamatory and, to anyone with any knowledge of the subject or indeed who have actually read the article, rather outlandish comments on the subject in hand.

    You have given the troll some good fun rising to his/her bait I’m sure but as anyone who spends any time on forums or writing comments knows, the best way to deal with a troll is to…

    …ignore them.

    To you Cpt. Sensible, if that is your real name, well done, very amusing.

  19. Tim Turner says:

    Secretgeek is entirely right. Captain Sensible is a troll. But I am going to ignore this sage advice because I am a troll as well, just one with the guts to give my name.

    There was a democratic debate. It happened in Parliament, at length, with many amendments and changes. The Captain hasn’t shown us the moment in that democratic debate when privately-held official information was excluded from FOI, or even mentioned in the debates. I’m sure it didn’t happen, hence the content of the Act. So puerile or not, it’s reality, and a reality created by the same special people the Captain seeks to cocoon. This is Parliament’s FOI Act, and so if you don’t like it, blame Parliament, politicians and civil servants. It’s civil servants and politicians who appointed and approved Chris Graham. If you’re involved in politics of whatever stripe, Captain, this is what your world came up with. Blame yourself or your ilk. We’re all just implementing what Parliament decided in a democratic debate, and Captain, you’re a coward for hiding behind a fake name and a bunch of schoolyard insults to cover impotent rage at a situation you guys created. I actually think the FOI Act approach is right, but if it isn’t, don’t go blaming anyone else.

  20. Tim Turner says:

    I finished the last post too quickly and should add this – the use of a pseudonym to protect insiders who don’t want to come into conflict with employers is entirely justifiable and often beneficial to all. I think ‘Captain Sensible’ is using an avatar solely because they want to name-call and defend a position that they know is bogus. That is what makes him / her a coward, not simply the use of a pseudonym.

  21. Phil Bradshaw says:

    Well if it’s facts Captain Senseless wants (though I have my doubts) how about this from the 1999 House of Commons Research paper :

    ” … high-level decision-making and policy advice are subject to clear protection in all countries,
    sometimes taking it outside the scope of the legislation altogether – for example in Canada, where “Cabinet Confidences” and related information are excluded from that country’s Access to Information Act.
    We do not propose a restrictive approach on these lines. Indeed, unlike previous UK Administrations, we are prepared to expose government information at all levels to FOI legislation.”

    So it was quite intentional.

  22. Alex Skene says:

    There are over 100 smaller public authorities listed on WhatDoTheyKnow (especially Parish & Town Councils), where the ONLY public information they hold will be stored exclusively in Hotmail, Google & Yahoo mail accounts and/or on home computers.

    This is because the parish clerks are not provided with “work” computers as such, and are thus expected to carry out their public duties using their home computers. The FOI Act applies equally to this kind of public information as it does to DfE’s information held within Mr Gove’s private email account.

  23. Captain Sensible says:

    If I know my position to be “bogus” then why do I advance it? In reality, I believe it to be correct, and congruent with the original intentions of Parliament.

    Some commentators on here offer quotations such as “privately-held official information” and “expose government information at all levels to FOI legislation” without facing up to the essential truth: political discussion between ministers and SpAds via private means cannot be regarded as ‘official’ or ‘government’ information.

    And as for the assertion that “We’re all just implementing what Parliament decided in a democratic debate”, don’t make me laugh. You’re ‘just’ trying to extend the scope of the Act in pursuit of an agenda that seeks to squeeze the politics out of government and leave it in the hands of bureaucrats.

  24. Captain Sensible says:

    By the way, it should be the priority of any competent management of a public body to slash expenditure on processing FoI requests, and to dispose of the costly parasites who perform make-work by answering these.

    No wonder the ‘professionals’ (what a joke) who work in this field come on here to defend the Act and argue for its extension. They make a good living from the taxpayer by servicing cranks and obsessives and pandering to their Woodward and Bernstein fantasies.

  25. Tim Turner says:

    Captain, I think you’re advancing a bogus argument and you’re lashing out at everyone who doesn’t agree with your flawed reasoning for the same reason. You’re frightened. I suspect that you’re the source or recipient of emails that you now realise are covered by FOI, and you’re scared that they might come out. People who’ve been using private email have probably been enjoying the freedom to show off and say things that they wouldn’t normally say. Now, they’re going to get exposed because the serious, harm-based FOI exemptions don’t apply to information that would merely embarrass its creators. If private emails showed politicians and their advisers in a positive light, your heels would probably not be dug so deep into the ground. The playground spite of your comments is possibly a little window into what might come out, so I can see why you might be worried.

  26. Captain Sensible says:

    Your attempts at cod psychology are about as credible as your assertions on the all-encompassing scope of the FoI Act, dear Tim. I am not the source or recipient of emails covered by FoI – I’ve already told you I’m not a minister or SpAd. And you mistake my righteous anger for fear, something which reveals your own small-dick delight in the possibility that you – a nobody – might be able to use FoI to make ‘important’ people sit up and take notice.

    This is not about the content of emails becoming public. Anyone who knows the workings of Whitehall is well aware of civil servants’ expertise in finding (often spurious) pretexts to deny FoI requests. Even I, no enthusiast for the the ever-expanding ambitions of the FoI peddlers, disapprove. Civil servants have zero interest in allowing the public to see what is going on behind closed doors. Their interest here – and the reason they love the latest FoI lebensraum – is that it allows THEM to see what’s going on behind the doors of ministerial offices, where they have no business during political discussions. And of course, more FoI requests probing into ministers’ political conversations allows civil servants to prove their indispensibility by keeping such emails out of the public domain via exemptions.

    I’m afraid that your naive assumptions as to motive serve only to prove your lack of judgement overall.

  27. Captain Sensible says:

    Jesus – I owe everyone on here an apology for my naive assumption that Tim is motivated solely by little-man syndrome.

    He may have started out that way, back when he was one of the the original ICO pen pushers, but his aggressive enthusiasm for an ever expanding and more complex FoI regime has a more powerful and obvious explanation. He makes money out of FoI! Not satisfied with picking up his salary cheque for being a professional busybody, our Tim has turned FoI entrepreneur:

    http://www.2040training.co.uk/site/home_1.asp

  28. S Jones says:

    Congratulations Captain Sensible (what an inappropriate choice of moniker btw).

    Your aggressive and unprofessional approach and gratuitous personal insults have made me lose all interest in what could and should have been an interesting discussion. Your trolling has therefore succeeded, you can go away and annoy more reasoned and thoughtful contributors than yourself somewhere else now. Please.

    (@Tim – I really want to comment on your blog but don’t want to sign up to any of the things that I would have to sign up for to be able to do so – some nice posts recently!)

  29. FoI User says:

    The “Captain” doesn’t understand the difference between “out of scope” and “exempt”. Nor does he understand the very clear definition of “held” used by the Freedom of Information Act.

    As for his attempts to smear Tim Turner, I assume Tim’s business depends on his knowledge of the Act, not by pressing for… Oh, what’s the word? Oh yes. “Lebensraum”. Of course.

  30. Captain Sensible says:

    I resent being described as a “troll” by those who prefer not to deal with my points. Yes, I am angry – angry at those who seek to adorn their vexatious antics with an entirely unmerited halo of public-spiritedness. You – the FoI salariat – are damaging democracy by your dogmatic refusal to see the other side of the argument. Yet, when challenged, you react as if you are being traduced for carrying out functions so uncontentious that only a frothing maniac – or “troll” – could possibly object.

    Political discussions are off limits to FoI. That’s because they are not conducted under the auspices of the state. Even if all parties to the discussion are employees of the state that makes no difference, as long as they are in “political” jobs. The private email accounts of ministers are, by definition, private. If a civil servant is using a private email account to conduct departmental business then that could be FoI-able because he or she has no other role. Treating ministers and SpAds as if they are civil servants demonstrates a shocking misreading of the law.

  31. Secretgeek says:

    Don’t.

    Feed.

    The.

    Troll!

  32. FOIMan says:

    Thanks for your comments everyone, but I think it’s time to draw this little discussion to a close.