Private Mail Used For Business Now Subject To FOI Searches

Public servants may now have their private emails and text messages trawled under the Freedom of Information (FOI) Act, according to new guidance.

The Information Commissioner’s Office (ICO) last week published guidance confirming that where private email is used for official business, it will be subject to searches under the Act.

Nowhere to hide

This follows an ICO probe into the use of private email by Education Secretary Michael Gove, after the Financial Times made a FOI request to the Department for Education (DfE).

According to a TechWeek report, the Financial Times was thwarted in its request to access certain emails sent by Gove, who they claim was  “circumventing” the official government email network by using a Gmail account.

“It came to light in September that this is a somewhat misunderstood aspect of the law and that further clarification was needed,” said Information Commissioner Christopher Graham in a statement.

The guidance now states that a public authority may ask an individual to search their email account if it finds that the account includes official information, falling within the scope of a FOI request, that is not held elsewhere.

This is not a blanket access to people’s private lives however, with the guidance being clear that while such cases will likely be rare, procedures must be put in place to ensure that all the factors are considered when deciding whether it is necessary to ask someone to search their private email account. Public authorities must also record any access to private email accounts and be able to prove that appropriate searches have taken place.

Mobile texts and media

The right to access public authority data does not only applies to private mail, but has been extended to any medium used to store data, including texts on mobile phones.

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.”

While the ICO understands that there will be times when the use of private mail for public authority business is necessary, the guidance now makes it clear that this must never be done in an effort to conceal information, which constitutes a criminal offence.

The guidance specified, “There should be a policy which clearly states that in such cases an authority email address must be copied in to ensure the completeness of the authority’s records. In this way, records management policies will make it easier for public authorities to determine whether information is held and to locate and retrieve it in response to requests. If the information is contained within the public authority’s systems it can also be subject to consistently applied retention and destruction policies.”

The ICO released its rather vague findings for the current DfE investigations during a good practice visit conducted at the Department in October this year. However,Graham noted that “work on specific complaints made to the Commissioner about the Department of Education’s handling of individual FOI requests is still ongoing. We hope to issue our decisions on these cases early in the New Year”.