The Information Commissioner’s Office published new guidance on 15 December on the issue of FOI-rights and private e-mail accounts. The guidance makes it clear that information concerning official business held in such 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 e-mail 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 … 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 e-mail 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 e-mail accounts should be a rare occurrence; therefore, we do not expect this advice to increase the burden on public authorities.’
Key points set out in the guidance include:
· Where a public authority has decided that a relevant individual’s e-mail 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 e-mail 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 e-mail 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 e-mail for public authority business. There should be a policy which clearly states that in these cases an authority e-mail address should be copied in to ensure the completeness of the authority’s records.
The ICO has also published the findings of a visit to the Department of Education, which was the source of interest in the particular issue, and are to carry out similar visits to other Whitehall departments. Work on specific complaints made to the Commissioner about the Department of Education’s handling of individual FOI requests is still ongoing.
