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

 

University Challenge

FOIMan welcomes union scrutiny of universities’ FOI performance and suggests other ways they can help FOI.

A press release earlier this week highlighted poor FOI compliance at universities. Not that long ago, of course, many universities were pressing to be removed from the Act’s coverage.

The press release came from UCU, the university lecturers’ union. It is good to see FOI being used effectively by unions and other groups that scrutinise public sector bodies.

However, reading their press release, I had to suppress a smile. It brought to mind the time when, as my university’s FOI Officer, I was dismayed to discover that an officer of our local UCU branch had sent an email to their members instructing them not to cooperate with my efforts to answer an FOI request. In the end I found ways to collate a response which avoided an unpleasant stand-off (let alone a potential s.77 prosecution for obstructing the provision of requested information). It’s also worth saying that this experience was never repeated, and was most probably the result of a misunderstanding.

But it highlights once again that for most practitioners, the most challenging aspect of FOI compliance is attempting to secure the cooperation of colleagues. Not least when others with influence are advocating resistance.

UCU and other public sector unions have found FOI to be a useful campaigning tool. They can help with the evolution of transparency in public sector bodies by encouraging their members to view FOI requests positively when they are on the receiving end.

Better information?

FOIMan reviews the government’s response to Sir Alex Allan’s review of government record-keeping and information management.

The Cabinet Office

“Good records management is essential for good government”, said Sir Alex Allan in his report to the Cabinet Secretary on the management of digital records in December 2015 (though dated August 2015 at the bottom of the report itself). It wasn’t particularly surprising that he found that the state of records management was not good:

“almost all departments have a mass of digital data stored on shared drives that is poorly organised and indexed.”

He didn’t comment on what that said about the quality of government.

The Cabinet Office – now responsible for information management across government – has published its response this week in a report entitled Better Information for Better Government. For a start, the fact that it has taken the best part of 18 months to respond to a fairly straightforward analysis of the issues with information management within government gives a clue to the single most important reason why records are in a mess: information management is not a priority – for civil servants or their political masters.

The problems that Sir Alex identified – lack of high-level buy-in, failure to comply with record-keeping procedures, a vast legacy of poorly organised information – persist, and the new report doesn’t really offer much in terms of a way forward. It repeats Sir Alex’s analysis of record-keeping, providing a very useful summary of how the problem developed. It also agrees with Sir Alex’s conclusion that technology is the answer – though adds little to our knowledge of how technology will do this. A table lists the technologies that are most likely to be of assistance, but no conclusions are reached as to what should be done. Data analytics or eDiscovery tools are highlighted as being a potentially useful solution, before the report points out that their expense and the need for specialist users might lead Departments not to employ them.

There’s an emphasis in the report on Departments doing their own thing. It’s not hard to imagine those leading the project being fobbed off by Departments wary of Cabinet Office interference, and perhaps weary of (mostly failed) attempts to address poor records management over the years.

The report does recognise the most significant impediment to improved information management: people. There is talk of “creating the expectation of regular information management”. This is to be done by making it easier to save records by improving the technology used, but also by using “nudge” techniques:

“Departments might also consider deploying behavioural science techniques to encourage civil servants to perform information management tasks more regularly and effectively.”

The overwhelming feeling I had when reading this report was deja vu. We’ve heard many times before that records management is poor in government (and, to be fair, in most organisations outside government). We’ve also heard that technology and culture change are the answers. Reading this report I didn’t get the impression that addressing this problem is a priority, nor that leaders in government would be pressing for that to change. Without prioritisation and leadership, I’m afraid we’ll be reading another report like this in a decade’s time, and the decade after that, and…

Sources:

Government digital records and archives review by Sir Alex Allan, Cabinet Office, December 2015

Better Information for Better Government, Cabinet Office, January 2017

 

 

 

The Fall & Rise of the Publication Scheme

FOIMan finds that the publication scheme has been much misunderstood and champions its role as a useful tool for practitioners.

It is often forgotten, but the Freedom of Information Act established two duties on public authorities. We hear all about the duty to answer requests, but very little about the other one – the duty to adopt a publication scheme.

In the past, I’ve been as dismissive of these schedules as anyone else. However, I’ve recently started to recognise that they have an increasingly important role in achieving compliance not just with FOI, but with other duties as well. What’s more, having delved into the history of the Act, I’ve discovered that there were very positive reasons for the inclusion of this duty in the legislation.

The government and stakeholders were keen to promote publication schemes at the start. Who knew, for instance, that at one point they were being lined up for a starring role in BBC soap opera The Archers?

If you’d like to know more, you can read my recent article for the Freedom of Information Journal. Details of how to subscribe to the journal can be found opposite.

What would an archivist do as information commissioner?

FOIMan reports on his first encounter with the new Information Commissioner.
Elizabeth Denham, Information Commissioner

Elizabeth Denham, speaking at the FOI at 250 event

One of the things that struck me most when Elizabeth Denham was appointed Information Commissioner earlier this year was her background. After the career bureaucrat that Chris Graham represented, her background as an archivist and records manager seemed particularly refreshing. And not least because that’s (ahem) my background too. One of the things I’ve been wondering ever since is whether, and how, this would affect her approach as Commissioner. What would an archivist use the position of Information Commissioner to achieve?

Last night I was fortunate to be able to attend a panel discussion celebrating the 250th anniversary of FOI, and the answer was forthcoming. It was my first opportunity to hear Ms. Denham in person. She drew a clear line in the sand with what had gone before. In particular she laid out two aims in relation to FOI.

Firstly – and a thousand archivists punch the air – she announced that she would be seeking to persuade government to introduce a statutory record-keeping requirement. In answers to questions it became clear that she saw this as an answer to the decline of registries. She also mentioned other jurisdictions that already have this kind of legislation, notably in Australia.

Secondly – and a hundred thousand FOI campaigners punch the air – she indicated her intention to pursue the extension of FOI to private sector contractors. “We should extend the right to know about public service so it is independent of the service provider”, she said.

Ms. Denham told us that Parliament would receive a report from her office in 2017 pushing both of these agenda. This is a Commissioner like we’ve never seen before – a campaigning, activist ombudsman. Whether it will achieve more than the pragmatic, softly, softly approach that appeared to characterise her predecessor we will have to wait and see. But it is certainly a refreshing and exhilarating change.

With thanks to Article 19 and the Information Law and Policy Centre at the IALS for organising the event.