Tuesday, January 03, 2012

Information Commissioner’s Office clarifies FOI law on ‘official business’ information held in private email accounts, texts. Scotland to follow ?

ico logoSneaky exchanges between civil servants, politicians & those in public bodies via private or secret email accounts can be revealed through FOI. SNEAKS in Government, Local Government public bodies & public services who use private email facilities to discuss official business in attempts to avoid the information leaking out through Freedom of Information legislation have now been told in no uncertain terms by the Information Commissioner’s Office (ICO) that information concerning official business held in private email accounts is subject to the Freedom of Information Act.

However, as the Guardian newspaper reports, the ICO’s move which brings Ministers private emails and text messages within the scope of FOI has angered politicians at Westminster who are now fearful Freedom of Information laws appear (to them) to be allowing too much openness following the latest ruling. The Guardian goes onto report “The chairman of the public administration committee, Bernard Jenkin, is understood to be considering a select committee inquiry next year in the wake of the recent ruling by Christopher Graham, the information commissioner.”

Currently there is no clarification from the Scottish Information Commissioner on how the ICO’s ruling on private emails affects FOI in Scotland, however, as they say, there’s no time like the present to test it out, particularly as it appears the practice of using private, secret, & throw-away email accounts by civil servants & certain ‘advisers’ to the Scottish Government appears widespread…

Commenting on the ICO ruling, 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.

Mr Graham continued : “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.”

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.

Mr Graham continued: “As part of our work on understanding more generally how FOI handling works across government, we conducted 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. 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.”

So, next time readers & FOI’ers do requests to the Scottish Government, local authorities, public bodies and so on, you may want to ask for any information contained in private email facilities used by those in the relevant organisations which relate to the business or subject access of your FOI request…


Anonymous said...

So typical of the brits.Once they realise FOI is letting too much out its going to be muzzled by the same expenses thieving Parliament which created it.

I do not expect Scotland will do anything other than follow the moves to shut down FOI.

Anonymous said...

Yes I imagine the mps will be scrambling to curtail freedom of information requests after it caused them all so much grief.

Is there any change on this in Scotland yet?Why is there nothing on the Scottish Information Commissioner's website about it?

Anonymous said...

Excellent work and a prompt reminder to all those who might wish to make use of the FOI Act in Scotland before the SLCC's Miss Rosemary Agnew is appointed as the next FOI Commissioner here.

I seem to recall she attempted to escape her own responsibilities under the act by WRONGLY claiming your request was vexatious.

Gawd help us all if she is allowed to replace Dunnion.

Anonymous said...

I can just imagine some of the stuff this ruling will pick up so its good to see it from a journalists point of view.

Anonymous said...


So the Scottish Government's advisers (paid for by taxpayers) are using secret email accounts to advise and discuss policy with the intention of circumventing FOI?

This doesn't sound like honesty in Government now does it?

Anonymous said...

I dont see why this shouldnt apply to Scotland although as seems to be the case in England with the mps worrying over their private messages I assume Mr Salmond & his Scottish "Government" will follow the cries of foul emanating from down south without actually admitting to it.

Anonymous said...

I wonder how many private emails the SLCC have used to discuss complaints and things written about on this blog!

I can just see them pressing the delete key already!

Anonymous said...

Have you ever had a politician sit in front of you knowing what your lawyer has done and what the SLCC and LSS have not done and tel you, I quote, "I dont see what I can do to help you" ?? Well I have and I'm desperate to read the e-mails between this useless tory bastard and his crooked pals in the law society etc

Anonymous said...

How do I ask for this kind of material now?

Anonymous said...

the practice of using private, secret, & throw-away email accounts by civil servants & certain ‘advisers’ to the Scottish Government appears widespread

How did you rumble that one?

Peter Cherbi said...

# Anonymous @ 3 January 2012 21:37

You could try something along the lines of asking for "any information or discussions contained in all electronic, email or other communication facilities used by [the public body, Government Department or identified individuals within those institutions which you are seeking the information from]"

# Anonymous @ 3 January 2012 22:12

Lets just say ... Careless talk costs secrets ...

# Anonymous @ 3 January 2012 21:32

I can think of a few who qualify for that category ... and across all political parties ...

# Anonymous @ 3 January 2012 18:00

There will be more to come on the Agnew-SCPB shoe-in for Mr Dunion's job in the next few days ...

# Anonymous @ 3 January 2012 19:08

There is not much honesty in politics ...

Anonymous said...

Establishment Protection

A member of the public goes to a reporter, giving them evidence they were ripped off by a crooked lawyer - had their money stolen, lost their house, lost their business , etc ... and went through the works - made a complaint to the Law Society of Scotland & got nowhere, made a complaint to the Scottish Legal Services Ombudsman and got nowhere, tried to get a lawyer to sue a lawyer and got nowhere, wrote to their MSP & MP & got nowhere.

The reporter then writes the story up, identifying the crooked lawyer & legal firm, identifying the Law Society of Scotland & the rest for doing nothing - and telling how this person went through years of torment, lost everything they had, lost even their family, friends, lost absolutely e-v-e-r-y-t-h-i-n-g, while, the crooked lawyer happily went on being crooked to other clients & nothing was done.

How do you think the newspaper's lawyers would react to that one when it came across their desk ?

Right ! The newspaper's lawyers call the Law Society of Scotland - and say something like "Hello Drumsheugh Gardens, we have a problem ...."

Guess what happens next ?

The reporter who wrote the story gets a call from, the Law Society of Scotland ... and if they are extremely lucky, they will get a call from Douglas Mill himself - to ask how strong they are going with the story ... a conversation ensues where the Law Society then make the reporter well aware of their position as regulator of the legal profession, with many tentacles which may just snag an errant reporter who might be tempted to cover this or other similar stories. The News Editor also gets a similar call, and the papers lawyers are told to advise against publication.

Result ? ... The story invariably gets killed .. so no publication and no bad publicity for the legal profession. Hooray for Law Society censorship ! Another cover up achieved a-okay !

Anonymous said...

The Law Society seems to lurch from one crisis to another. They have paid huge amounts of money to shut down the Solicitors From Hell website. Initially the actions were confined to its members suing for libel. O.K some solicitors were unfairly listed.

However, in the latest action the Law Society include harrassment claims for good measure. But what a mistake that was and the judge gave the game away in his judgement. If you cannot sue a journalist or blogger because the publication is true – it’s fine to sue for harrassment instead. So the message seems to be to solicitors and everyone in fact - if the publication is untrue and you are defamed – sue for libel. Or if you are correctly exposed for wrongdoing, sue for harrassment as an alternative.

That part of the judgement will go down as a grave error. The Law Society could have confined this to libel and probably still succeeded. However, by introducing harrassment into this they have got a whole bunch of folks steamed up. When journalists and the Libel Reform Campaign sit down and digest the implications for free speech there will be hell to pay.

And now the floodgates are open which one of the Law Society’s members is going to be the first to bring a harrassment claim. Keep a close eye on the court listings – that might be sooner than you think.

And in the meantime just see how busy the three websites which have replaced Mr Kordowski’s site get. According to Mr Hudson of The Law Society these sites are being monitored but currently ‘pose no danger to the public’. Glad to hear that Mr Hudson. We thank you for confirming that and the research which must have been carried out by the Law Society to qualify you to make such a statement on the public’s behalf.

Anonymous said...

Good ideas Peter!

Anonymous said...

Hmm a good point all those off the record communications between ministers and their unofficial supporters will also be up for grabs.

Anonymous said...

Oh dear Peter you will be giving people lots of ideas with this one on foi.I wonder how many computers were thrown out of the Scottish Govt or SLCC office this morning after they read it?

Anonymous said...

Keep us posted on this one Peter I want to ask about something that was discussed about my claim against a hospital and I know personal emails were involved because I already received an foi response hinting a Hospital boss was shifting the discussion about my case to somewhere else and after it was mentioned there was no more trail in the papers sent to me.

Anonymous said...

You seem to have angered a few people with your para about SG advisers using outside email addys for otr advice!