Government department must disclose data from private email correspondence, ICO rules

Out-Law News | 06 Mar 2012 | 9:10 am | 4 min. read

The Department for Education (DfE) must disclose information sent from a private email address belonging to the Education Secretary unless there is a legitimate reason to refuse doing so, the Information Commissioner's Office (ICO) has said. 

The ICO said that details of the email sent from Michael Gove's private email account to special advisers and a civil servant was subject to disclosure under the Freedom of Information Act (FOIA).

 “The information amounted to departmental business and so was subject to freedom of information laws, being held on behalf of the Department for Education," an ICO spokesperson said in a statement.

"The Department is now required either to disclose the requested information (the subject line of the email and the date and time it was sent) or issue a refusal notice in accordance with the FOI Act giving reasons for withholding it.” the spokesperson said.

FOIA and the Freedom of Information (Scotland) Act came into full force on 1 January 2005, giving individuals the right for the first time to see information held by Government departments and public bodies.

Under the FOI laws anyone of any nationality living anywhere in the world can make a written request for information and expect a response within 20 working days. The public authority is obliged to meet that request unless exemptions apply or unless meeting it is too costly or difficult.

In December the ICO published guidance confirming that messages in private email accounts, text messages and other messaging systems can be disclosed under the FOI regime if they relate to public business.

The ICO acknowledged that DfE had been following Cabinet Office advice "that government departments did not have the authority to search the private email accounts of members of staff" when it had conducted its search for the information prior to the ICO's guidance on private email disclosure being published.

DfE had denied the request for the information stating that it did not hold the information sought. It had searched Gove's departmental email account for the information only. However, the individual making the request supplied a copy of an email sent from a private email address to the ICO which has now decided it is subject to disclosure under FOIA.

When presented with a copy of the email from Gove's personal account DfE claimed that the information was political in nature and did not amount to public authority business. The individual requesting the information argued otherwise.

The ICO said the information requested related mostly to departmental business and should therefore be disclosed. DfE wrongly "created an artificial distinction" between 'official' Government information and 'political' information - a distinction which does not exist under FOIA, the watchdog said.

However, the "nature" of the requested information has to be considered before an assessment of whether information is held for the purposes of FOIA, it said. Government departments can hold "party political" information that would be "classed as private information or personal information" and outside the scope of FOIA. But in this case because the majority of the information requested was related to departmental business it is subject to disclosure, the ICO said.

"Although the Commissioner does not accept the DfE’s argument that the email is not held because it is a political discussion, neither does he accept the complainant’s submission that so long as any part of the email amounts to government business, the requested information (the subject line, date and time sent) will be held for the purposes of the Act," the ICO said in its decision notice (9-page / 55KB PDF).

"Rather, the Commissioner considers that the correct approach is to consider the purpose of the email and whether the majority of the contents of the email amount to the business of the department. The Commissioner has reviewed the contents of the email and considered the identities of the sender and recipients to reach a judgement on the focus of the email. Having done so, he has decided that the majority of the contents of the email amount to the business of the department and that therefore the requested information was held for the purposes of the Act," it said.

"In the Commissioner’s view the email can be characterised as a significant step in the development of a government communications strategy. The email is essentially an action plan and a list of key events or issues in the work of the department for the month of January 2011. The focus of the email is about publicising the work of the DfE and amounts to the promotion of government policy. This is supported by the fact that much of what was discussed in the email subsequently resulted in official departmental announcements," it said.

In making it decision the ICO said it had reviewed the fact that the email had been sent by the Education Secretary to two special advisers, a man who would later become a special adviser and a civil servant. It was also relevant that the information had not been sent to Conservative party officials, who would have been responsible for handling party political correspondence, it said.

The ICO also said that information contained in the email had led to subsequent announcements by DfE in relation to Government policy. The information had not been announced by the "Conservative party apparatus," it said. Other details contained in the email also "clearly" were not party political in nature and instead were "routine questions of civil servants".

The watchdog said it was concerned about the use of private email accounts to conduct departmental business.

"The use of private email accounts instead of departmental accounts for the conduct of official business is a matter of concern to the Commissioner for a number of reasons," the ICO said.

"Adherence to good records management practice should be encouraged to promote data security, to preserve the integrity of the public record and to ensure effective compliance with access to information obligations," it said.

DfE has a right to appeal.

In a separate case, staff at DfE have also been accused of deleting emails from departmental accounts that related to Government business. Approximately 130 emails sent to or from one special adviser, Henry de Zoete, have been destroyed with DfE yet to produce the deletion logs for the information they are obliged to store, according to a report by the Financial Times.