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UK Says FOIA Covers Official Information in Private Emails

Source: freedominfo.org

Date: 23 December 2011

The United Kingdom’s Information Commissioner’s Office Dec. 15 issued guidance “making it clear that information concerning official business held in private email accounts is subject to the Freedom of Information Act.”

Information Commissioner Christopher Graham said:

It should not come as a surprise to public authorities to have the clarification that information held in private email accounts can be subject to Freedom of Information law if it relates to official business. This has always been the case – the Act covers all recorded information in any form.

It came to light in September that this is a somewhat misunderstood aspect of the law and that further clarification was needed. That’s why we’ve issued new guidance today with two key aims – first, to give public authorities an authoritative steer on the factors that should be considered before deciding whether a search of private email accounts is necessary when responding to a request under the Act. Second, to set out the procedures that should generally be in place to respond to requests. Clearly, the need to search private email accounts should be a rare occurrence; therefore, we do not expect this advice to increase the burden on public authorities.

The Campaign for Freedom of Information welcomed the guidance. 

The Campaign’s director Maurice Frankel said: It’s been well understood since the Act came into force that officials couldn’t avoid FOI simply by doing their work on their home computers, using private email accounts or keeping official files under their beds. If it was that easy to avoid FOI, Whitehall would have closed down and government business would be carried out from people’s homes. If people have been deliberately using such techniques to claim that no official records exist, they may have been committing an offence under the Act.”

The decision is also discussed in Martin Rosenberg’s BBC blog. He wrote in part, “Mr Graham’s verdict today is not remotely surprising.”

Key Points of Guidance

Key points set out in the guidance include:

  • Where a public authority has decided that a relevant individual’s email account may include official information which falls within the scope of the request and is not held elsewhere, it will need to ask that individual to search their account.
  • Where people are asked to check private email accounts, there should be a record of the action taken. The public authority needs to be able to demonstrate, if required, that appropriate searches have taken place.
  • Although the main emphasis of the guidance is on official information held in private email accounts, public authorities should be aware that the law covers information recorded in any form.
  • Public authorities should remind staff that deleting or concealing information with the intention of preventing its disclosure following receipt of a request is a criminal offence under section 77 of the Act.
  • It is accepted that, in certain circumstances, it may be necessary to use private email for public authority business. There should be a policy which clearly states that in these cases an authority email address should be copied in to ensure the completeness of the authority’s records.

Graham also issued the results of a “good practice visit” at the Department for Education. “We’ve today published the findings of that visit and are now keen to carry out similar visits to other Whitehall departments.”