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.