Archive for FOIMan Q&A

FOIMan’s FOI Inbox

FOIMan answers your questions in the latest issue of the Freedom of Information Journal.

I recently put out a call to practitioners for their FOI problems with a view to featuring them (and my solutions) in one of my articles for the Freedom of Information Journal. You can now read the results in what I hope will be the first of a semi-regular feature: FOIMan’s FOI Inbox.

Problems posed in the first of these articles are:

  • when can small numbers be refused as personal data (if you shouted out ‘five or less’ or similar just now, you can do three laps of the sportsfield – rounded up to five, of course – right now…go on, off you go *folds arms, raises eyebrows, P.E. teacher-style*)?
  • do public authorities have to provide an email address to which FOI requests can be addressed?
  • how do you work out whether information in the possession of contractors is held for FOI purposes, especially when many contractual relationships are so complex?

Thanks to Gillian, Sarah and Mark for contributing the questions this time around. If you’re an FOI Officer struggling with any FOI or EIR issues, please do get in touch with myself or the FOI Journal editor and I’ll try to answer your query in print in a future issue.

FOIMan’s Q&As: how many emails?

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