The Information Commissioner's Office (ICO) has published new guidance (6-page / 156KKB PDF) making it clear that FOI laws cover relevant information even when stored or sent on private accounts or devices. It said that this is not a change in the law but that it wanted to clarify its position.
"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," said Information Commissioner Christopher Graham. "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," he said. "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."
According to The Guardian there is unease amongst civil servants about communications being made public that they believed would never see the light of day. It said that the Cabinet Office had previously declared that private emails were not disclosable under FOI rules.
The law does not cover just emails, though, it covers information "recorded in any form", the ICO said.
"The definition of information under [the Freedom of Information Act (FOIA)] is provided at section 84 and states that ““information” … means information recorded in any form”," said the ICO's guidance. "Therefore, official information recorded on mobile devices, including text messages on mobile phones, or in any other media, may also be considered to be held on behalf of the public authority in the circumstances outlined in this guidance."
"This does not necessarily mean that such information will be disclosable, but, on receipt of a valid FOIA request, public authorities should consider all locations where the requested information may be found," it said
In the light of the guidance, organisations should make sure that they do not sanction the use of private systems for business communications, one expert said.
"This guidance underpins the importance of using business email accounts for public sector communications. Private email accounts should be used in exceptional circumstances only and in a way that is compliant with the authority’s data security policy," said Kathryn Wynn, data protection law expert at Pinsent Masons, the law firm behind Out-Law.com. "Authorities will need to ensure that they have a clear policy in terms of how they retrieve the information held on private email accounts and be mindful of their obligations under Regulatory of Investigatory Powers Act 2000 and the Data Protection Act 1998 – noting that the ICO suggests that authorities seek consent of the individuals to search the accounts. Authorities will also need to ensure that information not relating to public business is redacted prior to disclosure."
Users of private systems in public authorities will also have to be aware of the rules surrounding the deletion of messages, the ICO said. Deleting messages so that they cannot be released under FOI laws is a criminal offence, it said.
"Public authorities should also 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 FOIA," said the guidance. "For example, where information that is covered by a request is knowingly treated as not held because it is held in a private email account, this may count as concealment intended to prevent the disclosure of information, with the person concealing the information being liable to prosecution."