Following the emergence earlier this year that Department for Education officials had, apparently routinely, used personal email accounts for the conducting of official business, the ICO has considered this issue. It has today issued guidance that many FOI officers and lawyers will find notable, to say the least.

The key points:

• FOIA applies to official information held in private email accounts when held on behalf of the public authority. So too text messages. This much is obvious from the definition of ‘held’ in s. 3 of FOIA. The question is exactly what this means, and what to do about it.
• There will be occasions on which, having searched its own systems, the public authority will be expected to ask employees (or contractors etc) to search their personal email accounts/text messages for information described in a FOIA request.
• The ICO expects such occasions to be ‘rare’. I think this means that the ICO will not expect the public authority to do so simply because a requester asks it to; something more will be required.
• What is that ‘something more’? The ICO recommends public authorities look out for ‘relevant factors’ which may trigger the duty to ask.
• These factors include the nature, wording and subject matter of the request.
• They also include “how the issues to which the request relates have been handled within the public authority”. This may be another way of asking: is the public authority aware that this sort of thing has been going on?
• Another relevant factor is “by whom and to whom the information was sent and in what capacity, e.g. public servant or political party member”. This is often a blurred line, one imagines. Not sure how this could be scrutinised (other than hacking into private systems, which is not nice, not fashionable and not legal).
• Public authorities should establish procedures for dealing with such situations.
• They should keep records of any private email account/text message searches they have requested.
• Public authorities should remind staff that, where a request for information to which the requester would be entitled has been made, it is a criminal offence to erase or conceal that information with the intention of preventing disclosure (see s. 77 of FOIA).
• ‘Concealment’ would include denying that anything of an ‘official capacity’ nature is (or, at the time of the request, was) in one’s private email inbox or text message folder.
• Public authorities should tell their employees not to use private channels for official business in the first place.

Panopticon understands from some of its friends in the media that requests aiming at exactly this sort of information were fired off this morning (or earlier this week, in anticipation of the new ICO line).

Meanwhile, a decision on the complaint against the Department for Education is in the pipeline.

Panopticon will be keeping its Benthamite eye on how these matters unfold.

Robin Hopkins